ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00005561
An Investment Manager
A Property Development Company
Claire Hogan, BL instructed by Ahern Rudden Quigley Solicitors
MP Guinness BL, instructed by O'Mara Geraghty McCourt
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 17/05/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant, an investment manager in a property development firm earning €120,000 p.a., was dismissed on grounds of redundancy. He asserts that he was unfairly dismissed, while the respondent asserts that this was a genuine redundancy.
Summary of Respondent’s Case:
The respondent submitted that the complainant’s employment came to an end due to a genuine redundancy situation. The majority of the work had been done on the office investment portfolio and the managing director could finish this work on his own. A named manager was being brought in as MD of the residential side. The respondent outlined that it had three employees when the complainant joined, and seven at the time he left. The complainant had been unemployed when he joined. Everyone was clear what direction the company was going in. It would be contrived to require formal consultation regarding a redundancy when it was clear that the complainant had to work on the residential project or bust. The complainant’s actions indicated that he was aware of where the office portfolio was going. There was a series of meetings with the managing director where this was made clear. The office investment portfolio was to “fix, lease and sell” and the market moved faster than expected. The complainant made it clear he was not interested in the residential side. The complainant could have stayed if he wished to work on the residential fund. There is no question of selection as the complainant was the only investment manager, so there was no possibility of a pool. The complainant was fully aware of the circumstances and he could not have been “stunned”. The office portfolio has since wound down. The respondent outlined that, in the background, the complainant was working on a competitor venture.
The respondent accepted that a statement of employment had not been provided. It submitted that the complainant could not claim annual leave cesser pay arising from his contract of employment via the Organisation of Working Time Act.
Evidence of the director
The director outlined that the respondent commenced in 2005 as a boutique investment firm. The office development fund was set up in December 2013 and focused on properties that needed to be fixed up in anticipation of the market picking up. He and the managing director are joint MDs and there is a CFO. They had 7 or 8 employees in 2008 and later downsized to three staff. In 2013, the respondent was one of the first movers and had various projects in Ireland and across Europe. The complainant was brought in on a short-term basis on €70,000 per annum salary. It was an error that the complainant was not provided with a contract.
The managing director led the office investment portfolio, with the complainant providing support in modelling and research. The complainant has overstated his role and he had never worked as an investment manager. The managing director sourced and procured the assets in the office investment fund via agents, NAMA etc. The respondent tried to get the complainant to work on the residential fund. In Q4 2015, the respondent decided to wind down the office fund and had sold the first asset in September 2015. It was the case of “fix, lease and sell”. While one sale was only completed in December 2017, the last asset was acquired in September 2015 and a decision was made to stop buying sometime before that. The pace of recovery in the office market was much faster than expected and rents increased. They felt that the market was getting toppy, so they wanted to get out. They wished to position the respondent in the Irish residential market and were attracting investors.
The director said that the restaurant meeting in August 2015 was a key event. This was a pay review for 2015 and the respondent wanted to increase the complainant’s pay to €80,000 per year with a €20,000 bonus. The complainant said he wanted a permanent salary of €100,000. The following year, the respondent moved the complainant to €120,000. At the meeting, the complainant broadened the conversation and was upset that the manager was coming on board in the residential fund.
In respect of the “Project Roles” document, the director said that the options of work relating to the Spanish and UK projects were not viable and an Irish site was not built and was now being sold. The complainant was clear he did not to be involved in the residential fund and they tried to persuade him to become involved. The work on the remaining five buildings in the office fund was done by the managing director and by an in-house accountant. The managing director was also spending time on the residential fund post July 2016. From August 2015, there were five or six meetings where it was clear that the work on the office fund was going to run out.
The director, the managing director, and the Chief Financial Officer met in May 2016 and met the complainant the following month. The complainant asked for his solicitor to attend the meeting of 8th July 2016 and the respondent offered that he could bring a colleague. There was an atmosphere in the office on the Friday and the director suggested that they meet earlier. The complainant agreed to meet at 3pm. The respondent told the complainant that because he would not work on the residential fund, his role was redundant. The complainant was clear that he was not interested in the residential fund. He asked for a few months’ pay and his share of the bonus. The respondent replied that he was not entitled to this and the complainant replied, “see you in court”. The complainant was not shocked as there had been a series of meetings. He was told he could leave there and then, but he was not escorted off the property.
The director said that no respondent employee had an entitlement to 30 days’ annual leave and the complainant had an entitlement to 25. The respondent carried out a forensic analysis of the complainant’s computer and telephone records and concluded that he was seeking to establish his own business from November 2015. This goes to his knowledge of where the company was going. This work included office development on prime sites, which the respondent would have been interested in.
In questioning, the director accepted that the respondent did not have a redundancy or dismissals procedure and while the word redundancy might not have been mentioned, it was made clear to the complainant that it was the “residential fund or bust”. It was put to the director that the respondent had made the complainant a permanent employee, had increased his pay and he had worked hard in the business; he accepted this, but it was clear that he was not giving it “full welly” at the end. The managing director did all the lead work on modelling and leases, including arranging tenants to give up leases. The director accepted that the complainant’s salary was increased in 2014 to €100,000. It was put to the managing director that the complainant had done a huge modelling of a named office block and worked on its refurbishment; he replied that the refurbishment was subcontracted and managed by a third party. It was put to the managing director that one site was acquired for €12 million and sold for €58 million; he replied that this project was a complete re-build.
The director outlined that the complainant reluctantly worked on the residential fund and accepted that there was no email showing such dissatisfaction. It was put to the director that the complainant had prepared research, presentations and overviews to entice investors to the residential fund; he replied that the complainant had himself said he was reluctant. The director accepted that the complainant attended the January 2016 meeting with a fund and that the manager said the complainant had played a “blinder”. This was an hour-long meeting and while they were happy, the complainant’s contribution related to one minute of this meeting. It was put to the director that the complainant was never told he faced redundancy; he replied that he knew it was the residential fund or bust and there was still opportunity on the 8th July 2016 for him to say he wanted to work in this fund. The complainant was clear at the Friday meeting that he did not want to work on the residential fund. While there was still work in the office fund, this was construction work in the hands of third parties and managed by the managing director. Most of the office fund ended in 2016 and the last assets were sold in 2017. It was put to the director that this was 18 months after the dismissal.
Evidence of the managing director
The managing director outlined that the respondent interacted with the complainant over possible contract work and agreed to employ him on a temporary basis. His salary was €70,000 and increased over the course of his employment to €120,000. The complainant developed into an investment manager and very much assisted the managing director, whose role was to meet agents, NAMA etc. The complainant assisted in modelling and to learn how the respondent modelled. The complainant started to draft board papers and the managing director had no issue with what he was doing.
The managing director outlined that the restaurant meeting took place on the 20th August 2015 where they discussed the complainant’s pay increase. The complainant was not necessarily happy, and the managing director refused to negotiate the bonus issue. The managing director raised working on the residential fund and the appointment of a manager on the residential side. The respondent did not have the development and housebuilding skills required, skills the new manager had. The complainant appeared to be disappointed that the manager coming in.
The managing director said that the office investment fund was conceived on a five-year horizon. Seven assets were acquired, and it became clear by Q4 2015 that the market was recovering quickly. They wanted to exit some of the assets earlier and sold an asset in early 2016. He handled this work with prospective buyers.
The managing director referred to his email to the complainant of the 8th February 2016 regarding the complainant’s role in the residential fund. He met the complainant the following day, who indicated that he was not interested in the residential business. The complainant said he do not want to do snag lists. The managing director replied that they then had a problem as the respondent was not going to build offices at a named site and they were looking to exit the office fund. It was the residential fund or bust. He asked the complainant to put together the Project Roles document about where the complainant saw his role. There was, however, no work available in Spain and the UK and they were not going to build the named site. It was awkward as the respondent was going in the residential direction and was exiting the office side. There was no doubt about where the company was going. This was not a behind-closed-doors strategy.
The managing director said that that the meeting of the 24th February was to touch base following the previous discussions regarding the two funds. It was a straight forward conversation and the complainant indicated that he had no interest in residential fund. The managing director said that this was a problem. The complainant said he wanted to raise 100 million dollars and to make a million and to sit in the managing director’s seat. While complainant was doing work in the residential fund, there was evidence of reluctance on his part. In respect of the meeting of the 2nd March 2016, the managing director said that there was not a huge interaction as the complainant was focussed on the office market. He was concerned that the respondent would not raise any more money for office development.
There were two meetings in May 2016 (the 11th and 30th May) and they became more difficult as the residential fund was being launched and it was clear that it was the residential fund or bust. They knew where the office fund assets were going and were looking for exits on the three largest assets. The complainant walked out of the 11th May meeting saying that he did not want to work for the respondent any more. The managing director reported this reluctance to colleagues, who were not surprised. On the 30th May 2016, they discussed where the respondent was going and the complainant’s participation. The complainant was clear that he did not want to work in the residential fund and only wanted to work in the office fund.
The managing director’s role in the office fund was to source assets and the complainant assisted in this role. While the managing director was on annual leave, the complainant helped put the acquisition together. As of July 2016, the managing director worked 50% of his time on both funds. There was now no need for an investment manager in the office fund. The position was clear from the restaurant meeting and their subsequent meetings as well the fact of the residential manager coming in and the sale of the most valuable office assets in 2016. They discussed the complainant’s reluctance to work in the residential fund and there would be no investment manager position of the office fund.
The respondent called the complainant to a meeting on the 7th July where they discussed the wind-up of the office fund and the complainant said he did not want to work in the residential fund. It was a small office and there had been an ongoing consultation from the restaurant meeting into 2016. It was clear that the complainant had no interest in the residential fund. The respondent was clear about its strategy and the complainant was also clear. There was potentially a role for the complainant in the residential fund and this was an issue for the new manager. The respondent’s thought process changed when they discovered what the complainant was doing in the background.
The meeting on the 8th July was straightforward. There were no harsh words and the complainant said he would see the respondent in court. The managing director said that he should come back when he wanted to clear his stuff. The managing director outlined that he was responsible for decision making, even when the complainant attended meetings on his behalf. Following the complainant’s redundancy, three significant assets were managed out and sold. One outstanding asset was “messy” and required retail expertise.
In questioning, the managing director outlined that they had asked the complainant on multiple occasions to work in the residential fund and had identified his role as either development manager or investment manager. It was put to the managing director that there were only general discussions and the complainant was carrying out some tasks in the residential fund; he replied that the complainant was not interested in and only worked reluctantly in the residential fund. It was to the managing director that an equivalent role was never identified in the residential fund and the word “redundancy” was not used; he replied that this was a very small office and people did broad roles beyond any description. It was clear where the respondent was going. It had raised money to buy residential land to apply for planning permission and to build houses. There was a role for the complainant.
The managing director accepted that the complainant had become a permanent employee and that while it took some time for him to adapt, he made a valuable contribution up to a point. The complainant learnt how the respondent did financial modelling and the key part was to ensure that the assumptions were correct, so that it produced good answers. He accepted that a colleague assisted in modelling and was not considered for dismissal. The complainant was dismissed and not this colleague because there was insufficient work in the office fund and the complainant was not enthusiastic about the remaining work. It was put to the managing director that the respondent increased the pay of an employee who the respondent was now saying contributed so little; he replied that they had no quibble with his work, but the complainant became unhappy after the restaurant conversation.
The managing director accepted that at the time of the complainant’s dismissal, the office fund retained 80% of the assets. While the office fund work was diminishing, the complainant stated his reluctance to work on the residential fund. He did not accept that it was he who used the term “snag list” at the March meeting. He said that while the “redundancy” word was not used, there had been five meetings after the restaurant conversation and there was no doubt the complainant did not want to work in the residential fund. The managing director was asked whether the complainant was meant to guess that this involved redundancy; he accepted that there was no documentation or procedures related to redundancy. It was put to the managing director that somebody should be told they could be made redundant before being made redundant; he replied that in the context of the wind down and their conversations, and the respondent’s subsequent discoveries, the consultation took place in practice. There was no need for a long process and no-one else was considered for redundancy as no-one else worked on the office fund. He said that it was clear to everyone that the consultation period began on the 9th February 2016 and took place over the course of meetings in early 2016. This was an organic consultation period. The complainant never stated that he wanted to stay.
It was put to the managing director that the complainant denies saying “I will see you in court.” It was put to the managing director that the Project Roles document was not an act of someone wanting to leave; he read this differently and questioned what the complainant would do following the wind down of the office fund. He would have reported to the new manager. The managing director was surprised that the complainant did not see the opportunity on the residential fund.
It was put to the managing director that while he had produced diary entries, there were no structured meetings about the complainant’s future in the firm; he disagreed, and one email specifically referred to the complainant’s role in the residential fund. Over the five meetings, they discussed the complainant’s role and the complainant was not shy about saying he wanted to be in the managing director’s seat and in office development. It was put to the managing director that the complainant did not know these meetings were taking place in the context of his exit; he replied that the concept was not then formulated, but it crystallised that the complainant did not want to be there.
In re-examination, the managing director said that the colleague became involved in the middle of the process and played a relatively minor role. By July 2016, the colleague had a junior role assisting the Chief Financial Officer. The complainant never said that he would work in the residential fund after receiving the letters of the 7th and 8th July. He and the colleague were not equivalents, as the complainant was paid €120,000 per year while the colleague was paid €27,000.
In concluding comments, the respondent submitted that a redundancy situation arises where the business need ceases or diminishes. In this case, the office fund was winding up. Not everything was done at the time of the complainant’s dismissal, but he was not replaced. The managing director absorbed the work and the fund concluded. This was a genuine redundancy. The evidence of the managing director pointed to various meetings and ongoing discussion of the respondent’s direction. This was to the residential fund, something the complainant was not interested in, according to his own submission. There was plenty of discussion of where the respondent was going, and the complainant knew this. It was “[residential fund] or bust” even if the word redundancy was not used.
The respondent submitted that selection was not relevant as the complainant was the only investment manager. There was no difficulty with the complainant’s performance and they were trying to get the complainant to engage in the residential fund. The respondent was not suggesting that the complainant should beg for his job, but he never said he wanted to work in the residential fund. He had re-iterated that he did not want work in the residential fund. The respondent submitted that the meetings amounted to consultation and the complainant could not be shocked by the meetings of the 7th and 8th July. This is fortified by his actions to develop his own fund with a business partner. The complainant worked on his own account after the end of his employment and chose not to apply for other work. The onus was on the complainant to mitigate his loss and this had to be taken into account.
Summary of the Complainant’s Case:
The complainant outlined that there were three claims: an unfair dismissal claim as this was not a genuine redundancy; the complainant had not been provided with a statement of his terms of employment and was only paid for 25 days of annual leave, rather than the 30 days he was entitled to. The complainant submitted that an employer must show that there was a genuine redundancy situation and there must be cause and effect so that the person was dismissed following a genuine procedure. There must be fair selection and fair procedures. The complainant outlined that there were separate high court proceedings regarding the complainant’s entitlement to a bonus scheme and there is a counter-claim on grounds of breach of confidence.
The respondent is a property investment company and has various funds, including the office and residential funds. The complainant previously worked for a public body on a salary of €140,000. He became a permanent employee of the respondent on a salary of €70,000 and was told he was entitled to a named bonus. He was never provided a contract of employment. He was involved in complex financial modelling and prepared investment presentations. There were seven assets in the office fund and only two had been disposed at the time of his dismissal. His pay increased to €100,000 in June 2014 and increased to €120,000 per year in 2015.
The complainant attended the restaurant meeting and was told that a named manager was coming in on the residential fund and this manager would get a share of the bonus. The complainant raised his entitlement to a bonus. There were discussions regarding the complainant doing more work on the residential project and he indicated that he preferred to work on the office project. He, however, agreed to work 5% of his time on the residential project. There was no mention of redundancy. They continued to work on the office portfolio in 2016 and an offer to buy these assets fell through.
On the 7th July 2016, the complainant was called to a meeting and furnished with a letter, warning him of his redundancy. This was the first mention of redundancy. The complainant asked for a solicitor to accompany him. He was handed the letter of the 8th July 2016 at 3pm, before the meeting at 4pm. The respondent did not have redundancy procedures. At this time, there was significant amount of work in office portfolio as only two assets had been sold. The remaining assets were sold in 2016 and 2017, with the final asset being sold in November 2017. After his dismissal, the complainant set up a venture in the rental sector and began negotiations for investment in this sector. This later fell through and in March 2017, he began looking for employment. He became an investment director in June 2017 on a salary of €120,000 + benefits.
The complainant outlined that he previously worked for a public body and his role came to an end at the end of his second fixed term contract. He was aware of the shortage of office space and made enquiries with the respondent and others. He met the managing director, who asked that the complainant submit models and his views on the property market. His salary was to be €70,000 pending ramp up once the fund was established. They raised more than the €60 or 70 million envisaged and the complainant’s role was to help the managing director identify assets. The complainant described the managing director as light touch and front facing. The complainant advanced all the models and identified assets. Two significant assets came to his attention from contacts. His modelling showed the potential in other assets, leading to the acquisition of a total of seven assets. He described as cynical the respondent’s description of him as an assistant.
The complainant outlined that he got on very well with the residential manager. The managing director asked the complainant for lunch and they discussed the office and residential funds. They discussed the manager’s bonus and the complainant expressed his concern. While the complainant was happy to be involved in the residential fund, he was not sure what his role would be and that it would be a long process. He commented that he had development experience. It had been important for the respondent to have the complainant’s name on presentations in late 2015 and in February/March 2016.
After the conversation, the complainant prepared the document suggested by the managing director. They had to develop a bespoke model for the residential fund and presentation documents. This took 70 or 80 % of the complainant’s time in late 2015. The foreign investors wanted to see money committed before investing. He drafted a document to show that the new mortgage rules would not hurt the residential fund. They met one significant domestic investor and the complainant was able to show the modelling regarding getting value. The complainant outlined that he was a most willing participant in the residential fund and accompanied the manager at meetings with their lawyers regarding the residential fund.
The complainant said that up until February 2016, there was no residential fund as one key investor had had not committed. At the February meeting, he asked the respondent to come back to him with a role in the residential fund as this was a seven-year process. This was bye the bye at the end of the meeting. There was no mention of redundancy and the managing director said that the complainant would not be doing snag lists. He was spending a large amount of time on the residential fund and he reminded the respondent that at the restaurant meeting they agreed he would only spend 5 to 10% of his time on this fund.
At the March meeting, the complainant said they discussed closing the office fund. The managing director outlined that the respondent intended to develop a named site and the complainant’s advice to break it up. There was no mention of redundancy and the complainant was never told it was “[the residential fund] or bust”. Redundancy was also not mentioned at the 11th May meeting. They went through due diligence on a portfolio and developed investor presentations. The 30th May meeting was a short catch-up meeting, following the attendance with their solicitors. The complainant also looked at getting involved in the Spanish fund.
The complainant was later handed the letter regarding the risk of redundancy. He was shell-shocked. On 8th July, the complainant met the director in the corridor, who said that the meeting should take place immediately. The complainant asked that a solicitor to attend and the director suggested a colleague instead. The complainant took a note of the meeting. The director handed the complainant the letter and the complainant said that there had not been any consultation. He asked about his entitlement to the bonus. He did not say he would take money or that he would see the respondent in court. There was no discussion at the meeting about the residential fund and no role was ever identified in the residential fund. There had been talk of roles in an Irish development and a project in Spain. The complainant said that he had not understood that his meetings with the managing director were anything other than working on the residential fund and other projects. He was not reluctant and wanted to finish the office fund. After the meeting, the director stayed on the complainant’s shoulder, who was only able to take his jacket and note book. Colleagues witnessed his departure. The complainant was not aware of an appeal and was not able to bring legal representation. There was never any discussion of how he was selected for redundancy.
At the time of his dismissal, 80% of the acquisition value was still on the books of the office fund. There was substantial work accompanying the completion and sale of the assets. It was not practicable for one person to do all the work. Without the complainant’s guidance, there was a risk to investors. The complainant was happy to mentor the colleague, who was eager to learn. The office fund ran over and the respondent’s July letters were incorrect that the office fund was winding down.
After his dismissal, the complainant was approached by investors to set up a fund for residential housing, but this could not proceed for regulatory reasons. He approached a property fund and established a company. The complainant received a salary from June 2017. He had not received a contract from the respondent. The respondent had said that they did not have set holidays, but 30 days was mentioned. He did not know how much annual leave he took in 2014 and 2015. The complainant said that following the November 2015 meeting, it looked like the respondent was exiting the office fund at a time when the residential fund was not in place. The complainant suggested another office fund, but the respondent was reluctant. The complainant said he never worked against the company’s interests.
In questioning, the complainant confirmed that in November 2015, he was aware the office fund could end in Q1 2016. It was put to the complainant that there was no doubt the office fund was ending; he replied that there was always a gap between cup and lip so it was not certain and the managing director had not said that it was definitively winding down. It was put to the complainant that there was a lot of “we” in his evidence when he was an employee of the respondent; he said that he was part of the process and a willing employee. He accepted that the decision to sell assets was one for the board. He put together the modelling for the residential fund and the colleague did not do this. The complainant stated that the respondent had downplayed his role and overstated the manager’s role. He prepared the speadsheet after the restaurant meeting and wanted clarity regarding the residential fund as he was being asked to give up his time to set up the fund. The complainant did not accept that he was reluctant and asked how this reluctance manifested itself. There were a lot more project roles available as set out in the Project Roles document. It was put to the complainant that he inflated his role and knowledge, for example in stating that investment was contingent on one key investor confirming their involvement; he replied that he said what he had been informed of in the office.
The complainant did not accept that it was clear the February meeting was to tidy up the office fund as this was not definitive. The complainant did not accept that being asked to draft the Project Roles was evidence of the office fund heading in one direction. It was put to the complainant that it was a matter for the managing director to decide whether the complainant’s role was needed; he replied that there was loads of work to do. It was put to the complainant that he was not replaced; he replied that the work would have been completed faster and with more return had he continued. The complainant did not accept that the February meeting became awkward when the respondent made it clear they were not doing office development. He further rejected that he had said at the 23rd February meeting he did not want to work in residential development or that he wanted to sit in the managing director’s chair.
The complainant said that his comment about being reluctant to work in the residential fund until after the end of the office fund was made in the context of ongoing projects, for example the development of a named site. No-one was clear about the residential fund and the office fund was not ready for sale or completion. The complainant said he demonstrated his willingness to be involved by accompanying the manager to the solicitors’ meeting. The complainant rejected that he had said at the May meetings that he did not want to work for the respondent if it was a residential developer.
The complainant said that he was simply handed the letter at the 7th July meeting and could not read through it or react to the points made. It was put to the complainant that he should have said he wanted to work in the residential fund; he replied that he tried to respond to the letter but could not do so. He also said that he had no opportunity to say at the meeting of 8th July that he wanted to work on the residential fund. It was put to the complainant that the letter of the 8th July specifically refers to his not wanting to work in residential fund and he had not refuted this; he replied that he was not given the opportunity to refute this. He had wanted a solicitor to accompany him and was handed the letter at the start of the meeting. It was put to the complainant that he was able to stand up for himself so if there was a blatant falsity he had every opportunity to challenge this; he did not accept this and commented that this was threatening behaviour and a threatening letter.
The complainant said that he did not apply for jobs between July 2016 and March 2017 and had worked on the investment project with heads of terms for €250 million. This project took a lot of time in developing models and presentations. In re-examination, the complainant said that at the time of his dismissal, all compliance issues relating to the office fund went through him.
In closing comments, the complainant referred to St Ledger v Frontline Distributors Ltd  ELR 160 and the requirements of redundancy being impersonal and related to change. The onus was on the employer to show that there was a redundancy situation, and, in this case, there was no concrete documentation to show that a redundancy situation existed. The complainant had shown that 80% of the value remained in the office fund. The complainant referred to JVC Europe v Panisi  IEHC 279 and Daly v Hanson Industries Ltd (UD719/1986) regarding the need to show cause and effect to establish whether the redundancy was genuine. Relying on Keenan v Gresham Hotel (UD 478/1988), there is also a need for proximity in time; in this case, the respondent’s evidence was that most of the work was completed by December 2016, so there was no redundancy in July 2016.
Section 6(3) of the Act refers to a selection process and 6(7) refers to reasonableness. Redundancy was never mentioned prior to the 7th July and there was no other documentation. Relying on Lovett v Temple Bar Gallery and Studios Ltd (UD284/2011), there is no exemption depending on the size of a company. Applying Paisley v McCormack Dental Ltd (UD 1257/2002), an employee must be aware they are being considered for redundancy when offered other roles. When the complainant spoke with the respondent about the residential fund, there was no mention of redundancy. It is no answer that this must have been obvious. Relying on the Morris v Callan Tansey Solicitors (UD143/2014), there were no notes of meetings, no prior notice, no selection criteria and the complainant had the longest service. There was no meaningful consultation, no advance warning and no consideration of alternatives. The respondent did not apply objective criteria. The complainant submitted that he should recover his losses up to finding alternative employment.
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. The complainant worked as investment manager for the respondent. His employment started in September 2013 at the time the respondent was setting up the office residential fund. His employment ended in July 2016 and the respondent submitted that the complainant was made redundant. The parties outlined that there were High Court proceedings and a counter-claim. Those issues are separate to the question of whether the respondent has rebutted the statutory presumption of unfair dismissal and the other employment law claims.
In JVC Europe Limited v Panisi  IEHC 279, the High Court held as follows in respect of fair procedures and the assessment of whether a redundancy was genuine:
“It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined. However, that does not arise for decision in this case. Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer, but I do not wish to comment on matters which are outside the competence of the decision to be made in this case: see Stewart and Dunleavy, Compensation on Dismissal – Employment Law and Practice, (Dublin, 2007) at paragraph 19.8.6. As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision. As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.”
It is accepted that the word “redundancy” was not used prior to the 7th July 2016. The evidence points to issues arising relating to the future direction of the respondent at the restaurant meeting in August 2015. These issues included the complainant’s entitlement to a bonus in the residential fund and the appointment of a new manager. There were subsequent meetings between the managing director and the complainant regarding their work. Whatever the tone and who-said-what at each conversation, it is clear that the meetings did not take place under the ambit of a redundancy process. This means that they cannot be considered as part of a procedure to assess the genuineness of a redundancy. The complainant was not given the opportunity to give his considered position of his role in the residential fund in the context of a possible redundancy. The events of the 7th and 8th July were hasty and cannot be described as affording the complainant sufficient opportunity to consider his position. The lack of a redundancy process and the hastiness of the July events mean that the respondent has not shown that a redundancy situation applied to the complainant’s position. It follows that the dismissal was unfair.
In assessing redress, I note that the complainant endeavoured to set up a significant residential investment opportunity after his dismissal. I accept that this demanded significant time and effort. It did not lead to a positive conclusion due to a regulatory intervention. This, however, represents one attempt to mitigate the complainant’s loss and the obligation to mitigate loss requires more than one such attempt. The complainant started alternative employment in June 2017, having spoken with prospective employers in March 2017. His salary with the respondent was €120,000 per year. Taking these factors into account, I award redress of €60,000.
This is a complaint pursuant to the Terms of Employment (Information) Act. It is accepted that the respondent did not provide the complainant with the statement required by the Act. This is a subsisting contravention throughout the complainant’s employment. I award redress equivalent to four weeks’ wages. This amounts to €9,230.
This is a complaint pursuant to the Organisation of Working Time Act. The claim is not well founded as the complainant has not set out his entitlement to 30 days of annual leave. Any failure to pay the complainant contractual holiday pay beyond statutory annual leave is also not a contravention of the Organisation of Working Time Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €60,000.
I find that the complaint pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €9,230.
I find that the complaint pursuant to the Organisation of Working Time Act is not well founded.
Dated: 20th February 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / redundancy / mitigation of loss
Terms of Employment (Information) Act
Organisation of Working Time Act