ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025216
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Manager | Equine Nutrition providers |
Representatives | Mark O’Connell SC / Donal Holohan / Maguire McClafferty Solicitors | Cian Beecher / Arthur Cox Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00032011-001 | 05/11/2019 |
Date of Adjudication Hearing: 30/01/2020 and 26/02/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 The Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently and the Employee has not the requisite training or qualification to continue.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).
In the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment wherein he had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the 5th of November 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
The Complainant worked for eight years with the Respondent company and his employment was terminated by way of Redundancy in 2019. The Complainant challenges the legitimacy of this claim. The Respondent says it came down to re-structuring in a challenging and competitive environment |
Summary of Complainant’s Case:
The Complainant attended with his representatives and I was provided with both written and oral submission. The Complainant gave oral evidence on his own behalf which said evidence was challenged by the Respondent in the ordinary way. |
Summary of Respondent’s Case:
The Respondent presented with legal representatives and provided me with a written submission. I heard from a number of witnesses on behalf of the Respondent a retired Director and the legal advisor. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of the two days of hearing. The Respondent is an England-based company involved in the manufacture and distribution of horse feed. This is a relatively small family-run business but has been very successful, and I do not doubt that the owners are very proud of their stake in the market and the success of this company. The Company was initially set up by a Husband and Wife who are now Board members with the day to day management having been handed over to their daughter K. As well as selling more general products, the company is capable of creating bespoke feeds depending on the particular requirements of a horse yard or farm or school. The company operates a 24-hour helpline offering advice on horse feed. The company relies on the expertise of its own technical staff when it comes to promoting and selling its product. At its base in the UK, the company employs a team of individuals who come from a scientific, veterinary and equine nutrition background. The Complainant gave evidence that he has worked around horses all of his life. Working with the Respondent he has combined his passion for horses with his ability to make sales. He says that he had been aware of the Respondent’s high-end horse feed and thought it had potential in the Irish market. He approached one of the company owners P, with a view to offering his expertise and knowledge of the Irish market for driving the promotion and sale of the product in Ireland. At that time (2011), the annual value of turnover in Ireland was €75,000.00. Mr P was very interested in the proposition and the pair agreed that the Complainant would be employed by the Respondent company for a year with the aim of increasing sales by 100%. Happily, for the Complainant, the year ending 2012 saw an increase in turnover of 180%. This trend continued over the years hitting a high of about €1,000,000.00 in about 2017. In his evidence, the Complainant is satisfied that it was his hard work, local knowledge and personal contacts that can be attributable to the sales achieved. At this time the Complainant was the Business Development Manager. The evidence showed that the Complainant and the Respondent had opposite views on the need to be seen to have expert technical and scientific personnel readily available to discuss nutritional the value of the product. The Respondent saw it as essential, whilst the Complainant believed that the requirement was only a sporadic requirement. In terms of sales from 2012 to 2019 the clear evidence is that the Complainant increased sales tenfold without the day to day presence of a scientist. This would suggest that the Complainant’s personal knowledge and understanding (attributable without the need to have specific qualifications) was persuasive to clients and customers. The evidence is that the daughter K would travel over from the UK once or twice a month to provide the technical support and explanation required to close a deal already worked up or “warmed up” by the Complainant. For example, this personal approach worked for competitive yards but other clients (such as retailers) were happy to have a telephone support line available as queries arose. In his evidence the Complainant stated that the lion’s share of the business was the provision of standard feeds to retail outlets and wholesalers. In 2018 K was appointed to the position of Managing Director as her parents stepped back form the day to day running. An internal competition was held to fill the two posts of Northern and Irish sales Director and Southern sales Director. The Complainant applied for the role of Norther and Irish role but was unsuccessful. The Complainant conceded that he was insulted not to have been appointed Director in Ireland and did not believe that the candidate appointed in the UK had an understanding of the Irish market. The Complainant was vaguely aware that there was talk of further re-structuring but the issue only solidified when he was invited to a meeting with WK (the Respondent legal advisor ) on the 14th of February 2019. WK was well known and well-liked by the Complainant. At this meeting the Complainant was advised that the company had been evolving such that the position he held was at risk. The Complainant was surprised that the new emphasis appeared to be on the need to have a qualified technical or scientific person on the ground in Ireland. The rationale for this shift in emphasis was never explained to the Complainant he says. Whilst he accepts that Management can re-structure it’s business, he believed he had built that business. The Complainant accepted that at that moment in time the company was making losses for the first time since he had taken on the role. The Complainant indicated that the losses complained of were very particular and out of his control. Given time, he believed he would have turned it around again. The Complainant says he was told that his job was at risk. The Complainant felt the shift in attitude. He was asked not to attend certain trade shows. He was being offered no support and no-one was coming over as they had heretofore. All effective communication was closed down. For the first time his performance was criticised at a sales meeting in the April in the UK. Whilst the Complainant continued to have telephone conversations with K the Managing Director the issue of his position being “at risk” was not discussed. On the 11th of July 2019 the Complainant again met with WK in a restaurant in Dublin. WK indicated that he did not have good news and that the envisaged changes were taking place. At this point in time, the Complainant was advised initially that his role was at risk being made redundant. The Complainant described himself as being shocked and dismayed. The Complainant was told that the company figures gave Management no alternative. The Complainant stated that the graphs which I saw in the course of evidence were not shown to him at that time. The Complainant further stated that WK had intimated that the Complainant as a sole operative was very expensive and that the company could have two sales persons on the ground for his salary. This was denied by WK. The Complainant was shown how the company proposed to compensate him for the loss of his employment. The Complainant considered the proposal to be inadequate given the work he had put into the multiplicity of sales created by his lifelong knowledge and reputation in this field of work. The Complainant was advised that he was welcome to apply for one of the two proposed Junior Development Business Manager positions to be created in the wake of his departure. The salaries attaching to these roles were very much less than the one he was being paid. I note that the Respondent intended that an additional purely technical support role would also be created. The Complainant was formally invited to partake in a consultation process and was additionally told not to work, not to contact customers and to take some sort of leave to consider his position. Unusually in the context of a purportedly ongoing Consultation process the Complainant was given a letter by WK which included a sample letter of Notice of Redundancy which included a Form of Acceptance waiving legal rights. The package on offer was Statutory Redundancy with an ex grata payment of circa €5,000.00. WK conceded that he had been in consultation with Solicitors in Dublin since the start of the process. The Complainant pointed out to WK in a letter dated the 15th of July that the work and functions that he had heretofore been performing for seven years, was not disappearing. The sales function would continue albeit be performed by someone with a different title at a smaller salary. The Complainant categorically states that his preference is to continue in his position, and he rejects the voluntary Redundancy on offer (the voluntary nature of the Redundancy was subsequently rejected.). In a subsequent letter of the 18th of July, The Complainant is happy to be moved to the proposed role of Junior Boniness Development Manger on his current terms and conditions and offers to put together a counter proposal to save his job. On foot of this the Complainant re-sent a previous proposal he believed had not been considered. The process petered out and the Complainant was made Redundant. On balance I am satisfied that the procedures adopted herein amounted to an Unfair Dismissal. The Complainant was let down by an employer for whom he had worked selflessly. Whilst there is evidence to demonstrate a dip in profits in 2018 and into 2019 there is nothing to suggest that Ireland had somehow become a chronic loss-making venture. I accept the Complainant was entitled to be dubious about the assertion that any solution had to include the engagement of a full-time technical/scientific person on the ground in Ireland. That had not proved necessary in the past and it was noted during the course of the hearing before me that no such person had been engaged right up to the time of hearing. No recruitment process had even been initiated. At no point, outside the context of making him Redundant, was the Complainant really asked what changes could be made or what initiatives could be implemented to reverse the faltering fortunes. I am inclined to accept that the Employer herein deemed the Complainant’s salary to be too high and having now availed of the Complainant’s expertise, skill and contacts for seven years deemed his value to the company moving forward, as diminishing. I agree that the outcome to this process was almost certainly knowable from February 2019 meeting. I do not accept Mr. Tyler’s evidence when he suggested that there were many potential outcomes had the Complainant come forward with suggestions. I therefore do not accept that had the Complainant put forward something other than a previously presented presentation that his job could have been saved. I regret to say that I found this part of the process to be perfunctory and without ambition. It seems surprising to me that the recently appointed Director to the Irish Market had no input into this process. In terms of mitigation of loss, I note that the Complainant has set up his own business as an independent sales rep approaching his client base trying to sell other/competitor products available in the marketplace. This has proved difficult as a lot of his client base are perfectly happy with the product he already sold from the Respondent and so the Complainant is looking to diversify into feedstuffs for other animals too. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00032011-001 The Complainant was Unfairly Dismissed and is entitled to be compensated for his remunerative losses. I award the sum of €40,000.00. It should be noted that any sum previously paid by the Respondent by way of a Redundancy payment should be offset against the figure of €40,000.00 |
Dated: 14-09-2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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