Complainant

Respondent

Parties

Mark  Mcgillycuddy

Avoca Handweavers Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Setanta Landers Setanta Solicitors

Judy McNamara IBEC

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-00042099-001

21/01/2021

The Complainant was an Executive Chef who commenced employment on 10th November 2010.

The Complainant was contacted on 29th September 2020 for a consultation meeting. He was told his role as Executive Chef with the company was at risk due to Covid-19 and the company were looking at alternative roles for him. A second consultation meeting took place on 7th October 2020, when the Complainant was informed the revenue was down 33% in July and yearly revenue down by 22%. No supporting documentation was provided by the company to support these figures. The Complainant was called to a third consultation meeting. He was offered a role in China and asked whether he believed this would be suitable. The Complainant was called to another meeting on 3rd November 2020 and informed his role was at risk of redundancy. On 4th November 2020, the Complainant was informed that he was made redundant with his last payment on 13th November 2020. He was afforded a right of appeal.

The Complainant lodged an appeal on the following grounds, firstly that proper consultation was not provided. He was informed the company was being restructured but not provided with any financial documentation verifying the figures. He was not given proper notice of redundancy. He was informed this information was sensitive financial information, and there was a downturn in business without evidence. Secondly, alternative options for redeployment were not considered. The Covid-19 measures were temporary so temporary measures should have been applied. Thirdly, the selection process was not explained. He was not considered in the pool of other Head Chefs remaining in the business. The Complainant says there was no proper explanation or meaningful engagement in the consultation process. He sought alternative roles in the business rather than redundancy, given his long service. His appeal was unsuccessful.

The Complainant submits a redundancy is presumed unfair under the Unfair Dismissals Act 1977 unless there are substantial grounds justifying dismissal. No financial information was provided to him by the company, or information regarding selection. The pandemic was used as a mask to justify the redundancy. The Complainant relies on the definition of redundancy in St. Ledger v Frontline Distributors Ltd [1995] ELR 160 and the High Court decision in JVC Europe Ltd v Panisi [2011] IEHC 279. The Complainant relies on the WRC determination in A Sales Director v An IT Company ADJ-00023978 where the employee is in a standalone position and the WRC Adjudicator said in that case a particular responsibility arises to ensure the selection process is fair and objective and the Labour Court decision in Tanneron v Canolin UDD2151.

The Complainant also relies on S6 (7) of the Unfair Dismissals Act 1977 where regard may be had to the reasonableness including the acts or omissions of the employer. The Complainant relies on the decisions in Production Line Lead v Employer ADJ-00024721 and White v Yenom Ltd UD993/2009. In Trinity College v Mr. Ifikhar Ahmad UDD2030 the Labour Court stated while a redundancy had been held sufficient efforts had not been made to seek alternative roles and the Complainant was found unfairly dismissed.

The Complainant says the process was an artificial and sham process, and that the employee with the longest service was selected. The Complainant has seven months loss of earnings of 57,166 euro.

The Respondent refutes that the Claimant was unfairly dismissed. The Claimant’s employment was terminated following a redundancy process.

The Respondent relies on section 6(4)(c) of the Unfair Dismissals Acts (1977 - 2015) which states: “the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

… (c) the redundancy of an employee”.

On 17th September 2020 the Claimant was informed by his line manager due to the company’s financial performance over the last number of years, with the impact of the Covid-19 Pandemic which had seen a dramatic continuous fall in revenue, the company was left with no alternative but to carry out restructuring of a number of departments and consider potential redundancies. As a result, the Claimant’s role as Executive Chef was at risk of redundancy.

On 18th September 2020 the Claimant was issued with an at-risk letter and invited to attend a first individual consultation meeting. On 29th September 2020 the first consultation meeting took place. Teresa Byrne HR Director issued details regarding any vacancies that existed in Avoca but also in the wider Aramark Group in Ireland. The Claimant was also provided with a briefing document outlining how he could register for the Aramark / Avoca ‘Employee Availability Hub’. At the meeting, the Respondent outlined the reasons why the role was at risk of redundancy. The Complainant was informed it was an opportunity to explore any redeployment opportunities or alternatives to redundancy.

On 6th October 2020 the second individual consultation meeting took place. There were no outstanding questions, this was an opportunity to address new queries and to explore  redeployment or alternatives to redundancy. On 20th October 2020, the third consultation meeting took place. The Claimant was represented by an Avoca employee who joined the meeting via Microsoft teams. The Claimant raised the possibility of a social media role which was unfortunately not a required role. Unfortunately, no redeployment opportunities or alternatives to redundancy were identified.

Teresa Byrne confirmed that if the role was made redundant the Claimant would be entitled to statutory redundancy of €12,696.00 and six-weeks’ notice. Teresa Byrne addressed the outstanding Bonus queries raised by the Claimant as the 2019 Bonus had not been processed in error and 2020 was due for payment in November 2020. On 26th October 2020 a fourth consultation meeting was rescheduled for the following day on the Claimants request. On 3rd November 2020, the final consultation meeting took place, the meeting addressed any outstanding questions and afforded the Claimant the opportunity to raise any new queries or alternatives to redundancy. The Claimant raised nine questions which were addressed by the Respondent. The Claimant did not accept the answers provided, and it was agreed to provide the Claimant with clarification in writing. Formal notice of redundancy was served, and the Claimant was advised he would be paid six weeks in lieu of notice as he had been on temporary layoff since approximately March 2020.

On 13th November 2020, the Claimant appealed his dismissal due to redundancy for the following four reasons: lack of consultation, lack of alternative options to redeployment considered, selection process not confirmed and an artificial process. At the appeal meeting, the Claimant was afforded the opportunity to outline in detail why he was appealing his redundancy dismissal on the four points outlined in their appeal letter. Mark Cribbin informed the Claimant in writing that the decision to dismiss him was being upheld.

It is submitted by the Respondent that it behaved reasonably and that the procedures and processes that culminated in the termination of the Claimant’s employment fall within Section 6 (4)(c) of the Unfair Dismissals Acts 1977 to 2015. The Respondent engaged in a full consultation process with the Claimant. It was only after all possible alternatives to redundancy were considered, including seeking suitable alternative roles, that a decision was made to confirm the redundancy of the Claimant’s role. The Claimant was afforded the right to fair procedures at all times. The Respondent submits the Claimant cannot have been unfairly dismissed within the meaning of Section 6(3) of the Act and respectfully requests that this claim fails.

I heard and considered carefully the submissions and evidence of the parties at the hearings.

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 states subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…

Section 6 (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either-

(a)    The selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b)     he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971as amended by the Industrial Relations Act 1990, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing the work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c ) the redundancy of the employee, and

(c)     the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or instrument made under statute….

The burden of proof rests on an employer to show there were substantial grounds justifying the dismissal of an employee for redundancy.

The Complainant was employed as an Executive Chef with the Respondent from 10th November 2010 until 13th November 2020.

On 17th September 2020, the Complainant was notified by the HR Director that due to a decline in income over the past few years, and impact of the pandemic there was drop in income of 22-28% that year, his role of Executive Chef was at risk of redundancy. He requested supporting financial information to verify the stated downturn in company income, however no documentation was forthcoming. The company said this is sensitive financial information and would not provide it.

On the first day of hearing 7th April 2022, Mr. Donegan HR Business Partner gave evidence that a transformation of the business took place in 2020 impacting seventy people following a business review. He had not seen the business review. Mr. Donegan said the Complainant was in a standalone role. He was one of three Executive Chefs which were employed for table service, the self-service cafes and new products. He said none of the two other Executive Chefs remained in employment with the company. Mr. Donegan said there were two Chef manager roles advertised as part of the business transformation.

Ms. Jones of HR was present for the consultation meetings with the Complainant. She gave evidence the company has an online redeployment hub where all roles were advertised. Employees could register or inform Ms. Byrne HR Director if they were interested in roles. There were no temporary, permanent or reduced salary roles available. There were no openings in marketing. The company made every effort to avoid redundancy. Ms. Byrne was not available for the hearing.

Mr. Jordan said the company avails of an audit exemption. The accounts relate to a number of businesses, and separate accounts are not available for Avoca. The company were requested to provide accounts evidencing the stated financial impact on Avoca, but did not do so. At the time, the company was in receipt of state support for companies during the pandemic.

The Complainant gave evidence of joining the company in 2010. He was the Head Chef in the successful Monkstown restaurant. He covered other aspects of the business including social media and worked closely with the other Executive Chef. He did not know why he was selected for redundancy. He did not feel the company were looking for an alternative role for him and said he felt it was a tick-box exercise. There were not many alternative roles offered and nothing similar. He said the only role that was available was the position of Chef in China or entry level roles.

The Complainant’s representative said he was not told a business transformation occurred. He was not aware of the two Chef Manager roles. The Complainant submitted social media posts from Avoca in July 2023 which referred to an Executive Chef being employed by the business.

I accept the Respondent was adversely financially impacted by the pandemic, and restructuring of the business was consequently required.

The nature of the business transformation and impact on the business in particular, the roles of Executive and Head Chefs has not been adequately explained. There is a requirement for impersonality in the process as set out by the Employment Appeals Tribunal in St. Ledger v Frontline Distribution Limited. At the time of his redundancy, the Complainant was an Executive Chef and was also formerly a Head Chef with the business. It is also notable that evidence has been given of the advertisement of two Chef Manager roles in the restructuring, but the Complainant was not aware of the two roles. He was agreeable to taking a similar role or step down in order to remain in employment.

Section 6 (7) of the Unfair Dismissals Acts 1977 as amended provides:

‘in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioners, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

 (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

I have considered the judgement in Thomas and Betts Manufacturing Ltd. v Harding [1980] IRIR 255 where the English Court of Appeal, held the employee’s dismissal was unfair because she should have been offered alternative work as a packer a position she formerly held.  I am not satisfied that the Respondent has discharged the burden of proof to show there were substantial grounds justifying the dismissal of the Complainant for redundancy.

I find the Respondent did not act reasonably in consulting with the Complainant regarding the alternative roles available. The dismissal is unfair. The appropriate redress is compensation. The Complainant has seven months financial loss. In all the circumstances, I direct payment of 57,166.00 euro gross financial loss by the Respondent to the Complainant. As the Complainant has made identical complaints against two Respondent companies, I direct a total payment of 57,166.00 euro gross is paid to the Complainant by the Respondent in this complaint or alternatively by the Respondent in ADJ-00031699.

The dismissal is unfair. I direct a total payment of 57,166.00 euro gross is paid to the Complainant by the Respondent in this complaint or alternatively by the Respondent in ADJ-00031699.