Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Representatives

Stephen Hanaphy B.L., instructed by Caoimhe Connolly, Solicitor,   Moran & Ryan Solicitors

Rosemary Mallon B.L., instructed by Lucy O’Neill, Solicitor,  Mason Hayes & Curran

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-00055405-001

06/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave evidence under affirmation.  Cross examination of all witness took place.

At the close of the hearing, the complainant indicated that she wished to remain anonymous.  Additional post hearing information was provided.

The respondent submitted that it is a provider of end-to-end financial infrastructure and technology for the crypto economy. It operates an online platform that allows merchants, consumers, and traders to transact with digital currency.

The respondent submitted that the complainant was hired as a Consumer Support Analyst in 2019. This was a level 2 role. She moved to a new role as Senior Support Analyst in July 2021. This was a level 3 role.  While the complainant was on maternity leave there was a change in leadership over the customer service organisation and there was a change in how the respondent described that organisation, including title changes. The title of Senior Support Analyst was changed to Customer Service Agent. This was an organisation-wide change and not a change that only impacted the complainant.  This title change had no impact on the duties or functions to be carried out by her.

The respondent accepted that the complainant was stretched into tasks related to process improvements to make the customer experience better. She did not acquire a new title and she was stretched into this role at her request to develop her skills and expertise. She was not a Process Specialist; she remained a Customer Service Agent.  The respondent noted that it is accepted that when she was carrying out this stretch assignment that she was carrying out different tasks.

The respondent submitted that it is not controversial to say that in 2022 and 2023 the crypto market faced great difficulties. The respondent needed to make significant cost savings. Unfortunately, the decision was made to make a significant number of employees redundant. A series of redundancies took place over a period of time in 2022 and 2023. In June 2022 the respondent conducted a global redundancy impacting 18% of the employee population, approximately 1100 employees.   In November 2022 the respondent conducted a global redundancy impacting their Talent team (i.e., Recruitment/People) and Institutional Operations team. There were approximately 46 employees impacted on the Talent team and 18 employees on the Institutional Operations team. Countries impacted included the U.S., the U.K., Ireland, the Philippines, and Singapore.

The respondent further submitted that in January 2023, it conducted a global redundancy impacting approximately 950 employees which is the relevant redundancy process for the purposes of this complainant.  The respondent conducted additional global redundancies on a number of occasions since that time.

The respondent submitted that there is nothing personal about the redundancy of the complainant’s role. Unfortunately, she was one of many impacted by the downturn in the crypto market.  On 10 January 2023 the CEO of the respondent’s parent company issued a statement to all employees stating that, amongst other things that the company had “… made the difficult decision to reduce our operating expense (1) by about 25% quarter on quarter, which includes letting go of about 950 people (2). All impacted team members will be informed by today.”

The complainant was informed by email that her role was being proposed for redundancy. The email also informed her of the collective consultation process, and the election of employee representatives together with the individual consultation process.  The respondent submitted that it is not in dispute that the complainant was locked out of the respondent’s system when she was placed at risk of redundancy. This is a company practice that is done for security reasons. It is not determinative of matters. By way of example two employees in the U.K. who were locked out of the system when placed at risk of redundancy (as part of the same redundancy process) had their access restored when it was determined not to make their roles redundant.

The respondent submitted that a copy of the redundancy notification to the Minister for Enterprise, Trade and Employment as is required. The notification indicated that it was proposed to make 103 employees redundant in the Irish company.

The respondent submitted that the complainant had her first individual consultation meeting with to HR staff on 26 January 2023. One of the issues that was raised by the complainant at the meeting was the following: “I'm not entirely sure that when looking at roles and performance, was everything looked at? Like reviews and pulse checks? Most of my work was the actual role in 2022 looked at as well.”  The respondent submitted that there was a business decision made for cost savings reasons, that the respondent would no longer have a customer support function in Ireland. For the avoidance of all doubt every Customer Service Agent in Ireland was made redundant save for: (a) the Customer Service Agents in banking operations and legal complaints. These roles could not be eliminated for regulatory reasons; and (b) the Customer Service Agents based in Ireland in the German speaking team. All other Customer Service Agent roles in Ireland were made redundant.  The complainant alleges that she was doing different duties as she was on a stretch assignment in project management and that she was carrying out the work of a Process Specialist.

The respondent submitted that for the sake of argument, even if the complainant was a “Process Specialist” on the date the redundancy was announced, it remains true that all Process Specialists in Ireland (save for one individual) were made redundant in the same event. The one individual who was not made redundant had unique experience that permitted her to be transferred to a privacy specialist role on the respondent's Governance, Risk Management and Privacy team. The respondent submitted that as a result, irrespective of whether the complainant was considered a Customer Service Agent or a Process Specialist, her role was made redundant.

There was a discussion about the enhanced redundancy package that was on offer to employees. It is clear from the notes of the meeting that the complainant was deeply dissatisfied with the proposed enhanced package if she was made redundant. It was made clear to her during the consultation meeting that there would be no cash bonus across the respondent group due to company performance. It was also explained that she would only be eligible for an equity award if she was actively employed on the vest date.

The respondent submitted that the complainant followed up with an email dated 31 January 2023 where she raised inter alia concerns and complaints about the package that was on offer, her equity bonus for 2022 and the shares option vesting dates. She also raised issues about how her role was selected to be placed at risk of redundancy given she was on a stretched assignment.  HR Section responded to that query stating that, in relation to the equity bonus: “An employee must be actively engaged on the vesting date. If your role is ultimately made redundant, you will not be eligible for the February equity vest because we expect any redundancies to be effective 13 February, which is prior to the vesting date. (the company) will also not pay out the equivalent of the shares that would vest on 20 February. The Company is taking a consistent and firm approach here as well. There will be no acceleration or equivalent payments.”

The respondent submitted that a HR Business Partner explained, in relation to the issue of selection, that: “We understand that you had agreed to a stretch assignment and had begun to work with the Programme Management team in a Process Specialist capacity. This was known and understood by (the decision maker); however, you were still in fact a part of the IDOPS function (as you stated in our initial meeting) and had not been transferred nor provided a permanent role as a Process Specialist. As such, this function in which you reported was eliminated in its entirety in Ireland because this team in Ireland will no longer exist due to deprioritization and other business decisions.”

A further individual consultation meeting took place the following day between the complainant and HR staff discussing the various concerns raised by her. She queried inter alia whether the Company had deemed the role she was carrying out as at risk of redundancy as opposed to simply the job title. A further follow up email was sent to the complainant which reiterated to her that the decision to place her role at risk of redundancy was fair and reasonable. She was notified of the decision to make her role redundant on 13 February 2023

The respondent submitted that the complainant alleges that the redundancy was a sham. Her role was made redundant for cost saving reasons along with 950 other employees globally. She was not singled out or treated any differently. The decision was impersonal. The respondent dealt with these redundancies properly and in accordance with the law as can be seen from both a collective redundancy process and in relation to the individual consultations. The individual consultation process was appropriate and correct. Unfortunately, the complainant’s role was redundant and there was no alternative to the proposal to make her role redundant.

The respondent submitted that if the complainant is found to have been unfairly dismissed (which is denied) then she has suffered a very limited loss as after a few months she got a new job at a higher rate of pay. The respondent submitted that despite this, the complainant makes the extraordinary assertion that her loss is over €100,000. Some of this claim is based on a flawed argument that an equity bonus was due to be paid in March 2023 and should be taken into account along with share options that did not vest because of the termination of her employment.

The respondent submitted that in relation to her claim that a 2022 equity bonus to be paid in March 2023 should be taken into account, the following issues are relevant:

1.      Her contract of employment makes no reference to an equity bonus.

2.      The equity policy/scheme specifically provides that “The equity award program always remains at the sole discretion of the (the company) Global Board”. The complainant was therefore never guaranteed this equity.

3.      It is quite clear from the documentation that equity grants do not form part of the complainant’s remuneration as they are not mentioned in her contract of employment. Such a grant is discretionary.

4.      Without prejudice to the above: - The grant of equity that was due to be made in February 2023 was an annual discretionary award which would have vested in equal parts quarterly. No grant of equity was made in February 2023. Even if a grant of equity had been made in February 2023, the complainant would not have actually been paid anything in respect of the grant unless she was in active employment on the vest date(s).

The respondent submitted that the complainant asserted that this equity grant has a value of $45,000. It submitted that this makes no sense and appears to be based on the complainant looking at the current share price. In February 2023 the equity was valued at $30,000 based on an individual share value of $60 per share. If one had a performance rating of 3 (i.e. their target) then there would be a grant in equity valued at $15,000, if there was a performance rating of 4 then a multiplier of 1.5 would be applied, if there was a performance rating of 5 then a multiplier of 2 would be applied. There is nothing to suggest that the complainant would have received a performance rating of 5.

The respondent submitted that if the complainant had received a performance rating of 3 (i.e., if she had met her target in 2022) and equity had been granted to her in February 2023 (which it was not) then, given the quarterly vesting schedule, the absolute most that could have vested (i.e., been paid out to her) on 20 February 2023 is $3,750. It was noted that any equity previously granted that was outstanding and unvested on the termination date was forfeited on the termination date and did not vest after the termination date. Furthermore, the scheme is clear that you must remain an employee for the equity to vest. The equity policy/scheme specifically stipulates that the equity grant will only vest quarterly “so long as they remain employed through each vesting date”. The complainant was not employed on the vesting date.

The respondent submitted that in relation to any argument that the complainant intended to make about options and shares given to her before the IPO of the Respondent’s parent company, it is important to note that she was provided with a Transition Summary Guide which set out instructions on how to exercise those share options if she was ultimately made redundant. If she chose not to exercise those options, there is nothing that the respondent can do about this. In relation to unvested stock options at the time of the termination of employment they should not and do not form part of the assessment of actual loss. In this regard the respondent relied on Flourish v Alienvault Inc. [2017] E.L.R. 224.

Relevant witness testimony:

The first witness for the respondent was a HR Business Partner who noted that the complainants job title was changed from “Support Analyst – Consumer” to Customer Service Agent while she was out on Maternity leave, (long before her redundancy) but she noted that the functions of the role did not change.  She stated that while the complainant took on additional duties, those of a process specialist, she remained a customer service agent. The witness stated that due to the “Crypto Winter” the company had to make staff redundant, letting go 950 staff on a global basis.  She stated that the redundancy procedures included locking people out of the system to protect customer data and other company information.

Under cross examination the witness confirmed that the complainant was stretched into product improvement tasks and noted that other employees were also possibly stretched into other roles.  It was put to her that this was unfair, but she noted that although the complainant had her main role and function, her contract contained a flexibility clause.  In relation to the restriction of access to the computer system after being notified of a possible redundancy, the witness noted that this was company policy.  

Under redirect, the witness noted that the complainant would also have been affected by the company redundancies if she were a full process specialist as that role was reduced by 30%.

The second witness also worked as a HR Business Partner.  She met with the affected staff and noted that there were two other roles open at the time of the redundancy, payment analyst and institutional analyst, but she confirmed that the complainant did not have the skills or interest in either role.  She noted that the entire function where the complainant worked was eliminated in Ireland.  She also noted that no bonus was paid out to any employee on a global basis.  She confirmed that the complainant was made redundant and was paid in lieu of notice.

The witness confirmed that the complainant was stretched into a process specialist role, but that function was made redundant in its entirety too.  The witness also commented that the complainant did not have the previous performance ratings to qualify for the bonus that she was suggesting that she missed out on.

Under cross examination the witness stated that there was no consideration of redeployment as the various teams across the company were subject to a hiring freeze.  She stated that the two roles referred to by the other witness were the only available roles within Ireland.  She stated that the complainant was told that she could have moved elsewhere if she had the work authorisation but that the company would not be paying for her to relocate.

The witness did not accept that the complainant could not raise a business justification without access to the system as it was open to her to request any further information from the witness.  The witness noted that she wouldn’t describe the complainant’s role as a stretch role as she had voluntarily offered to undertake the other duties.

It was put to the witness that the company chose the redundancy date to avoid the complainant (and others) remaining in employment upon the vesting date for the share options.  She didn’t accept this suggestion.

The third witness for the respondent was the stock administrator.  She confirmed the details of the contract of employment and noted that there was a cash bonus system in operation together with a bonus plan.  She noted that this was not paid out as the company bonus performance level was not achieved.  She confirmed that in relation to the stock options that there was a vesting component.  She stated that any options that have already vested are still exercisable.

The complainant’s case is that this was a sham redundancy in that the respondent didn't look at redeployment.  Her role was in a stretch role and ultimately her job did not fall within the section being made redundant.

The complainant began working for the respondent in January 2019, holding the position of senior customer service agent until her dismissal on the grounds of alleged redundancy in February 2023.

The complainant submitted that on 10 January 2023 while she was working from home on a laptop furnished by her employer, suddenly and without warning she was locked out of the system. All applications on the machine were shut down before the laptop was wiped and rebooted remotely. Having been locked out of the system about 45 minutes later she received an e-mail from the respondent to her personal e-mail address informing that her employer, having considered all possible options, her role was being proposed for redundancy. Complainants submitted that her understanding was that only those affected by their purported redundancy are locked out in this manner.

The complainant submitted that she was subsequently contacted by the respondents HR section stating that her role was at risk of redundancy and stating that while ordinarily the respondent would consider redeployment opportunities for the complainant, this was not an option for the company for the foreseeable future. The complainant submitted that this was followed by a consultation process during which it was made clear to her that redundancy was a sham and was wholly lacking in transparency or genuineness.  She stated that it was made clear to her that the respondent did not understand her role.

She noted that it became apparent that the role at risk of redundancy was identified as an RD agent role and she was not occupying such position. The complainant noted that she returned to work following return to leave in March 2022 and that her Level 3 road now consisted of more complex work and greater responsibilities, neither casework nor an RD role.  The complainant submitted that she sought to clarify the respondents position by way of e-mail at the end of January 2023.

The complainant submitted that there was a circularity of the argument put forward by the respondent in that it noted that the function in which she reported was eliminated in its entirety in Ireland because the team in Ireland will no longer exist due to deprioritization and other business decisions. She submitted that this circularity demonstrates the unreasonableness and obtuseness of the respondent in attempting to rationalise the alleged redundancy of the complainant role.

The complainant submitted that notwithstanding the concerns she raised on Saturday 11 February 2023, the respondent emailed her to confirm her dismissal on grounds of redundancy noting in its correspondence that it had considered any opportunities for redeployment and had not been able to identify such an option for her. The complainant submitted that it is difficult to read the respondents emails without coming to the conclusion that the respondent was being less than truthful with its employees during the alleged redundancy process. The complainant said that there were a number of substantive serious issues raised by the complainant which were not considered by the respondent. She noted that they had indicated that they would consider what she said and come back to her. The complainant submitted that she was a victim of a contrived redundancy process which had as its predetermined objective, her dismissal.

The complainant submitted that the law governing unfair dismissal is well established and that it is for the employer to prove that the redundancy was real and genuine and that the dismissal of the complainant was fair and lawful.  The complainant submitted that the responded failed during its consultation process to show that there was a genuine need for the redundancy of the complainant’s particular role. The lack of understanding demonstrated by the respondent of the actual role and functions discharged by the complainant fundamentally undermines any proposition that her role was redundant or that she was fairly selected for redundancy. Additionally, the ambiguous statements by the respondent regarding redeployment opportunities underscores the haphazard and tokenistic approach of the employer to the redundancy process while also demonstrating that the respondent cannot have been truly satisfied that the complainant could not be accommodated in another part of the business.

The complainant referenced Boucher v Irish Productivity Centre [1994] 5 ELR 205 noting that no agreement was reached as to the method of selections for redundancy, the chief executive of the relevant business simply selected people not suitable to continue with the employer. In holding the selection procedure to be unfair and finding that the claimants had been unfairly dismissed, the EAT emphasised that, where selection involves consideration particular employees’ contributions and versatility to the respondent, those in the group likely to be dismissed should be made aware that such assessment is being made and they should be given an opportunity to give their views, which should be considered. The complainant submitted that, significantly in Boucher, employees are afforded the right to contribute. Boucher is the authority the further proposition that we're assessments are used as a means of selection, the onus is on the employer to establish that reasonable criteria are applied to all employees and that the selection of an individual employee is fairly made in the context of those criteria. The complainant noted that it is not enough for the employer to note such contributions or concerns by way of mere box ticking and proceed to dismissal notwithstanding the complainant's observations and queries.

The complainant submitted that in Sheehan and O’Brien v Vintners Federation of Ireland Ltd [2009] 20 ELR 155, claimants were held to have been unfairly dismissed even though the redundancy was found to be genuine. The employees provided proposals to the company on how their jobs could be retained and the company did not take these into consideration. The tribunal was critical of, inter alia, the employer’s failure to consider earnestly the claimants’ proposals regarding the reorganisation of work which would have realised significant savings. The complainant submitted that it is this same lack of earnestness that characterised the approach of the respondent in this case and therefore renders her dismissal unfair.

Summary of relevant testimony:

The complainant stated that she was locked out of the system before being notified of being at risk of redundancy.  She stated that she should have had access to the system to have appropriate access to the information that impacted on her.  She stated that there was no chance to say goodbye to colleagues as the company was a ‘remote first’ company.  She stated that she could understand why they did it like that from a security perspective, but she did not like the manner in which it was carried out.

She stated that the employer told her that redeployment was not an option.  She stated that the share option related to the last quarter and accordingly should have been provided to her.  She also noted that the employer is now actively hiring.  However, she stated that the respondent was simply ticking boxes when operating the redundancy options.

The complainant stated that her loss of earnings amounted to €14, 217 and she outlined her efforts to mitigate that loss.  She confirmed that no one received the cash bonus but noted that the respondent did not follow the collective redundancy process.  She stated that the company had already made up its mind to make her redundant.

Section 4 of the Unfair Dismissals Act, 1977 states as follows:

(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 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

(d) 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 any statute or instrument made under statute.

Section 7 of the Redundancy Payments Act, 1967 states as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The complainant submitted that her employment was terminated in an unceremonious manner when she was locked out from the system.  This meant that she was unable to partake meaningfully in the redundancy process.  She stated that the engagement process with employee reps was laughable.  She also submitted that it was unclear whether any consideration was given to redeployment options.  She stated that the date of redundancy was identified to avoid the vesting of shares in staff and that this was unfair and disingenuous of the respondent.  Finally, she submitted that the redundancy was simply a box-ticking exercise.

For their part the respondent submitted that it made a business decision and, whether it was short-sighted or not, does not make it an unfair dismissal.  It was noted that the complainant did not either attack or question the collective redundancy process and this line should fail as matters were not put to the witnesses.  The respondent suggested that there was a clear consultation process where questions were asked and answered, the complainant did not like the answers she received.  The respondent submitted that this was not a sham redundancy, 950 roles globally were made redundant.  The respondent noted that the complainant’s loss is limited to the period between the date of termination and 2 May and noted that there was no cash bonus paid out to any staff for the preceding period.  The respondent also submitted that share entitlement was very clear in the contractual sense and the complainant was not an employee when the shares were due to vest.

The complainant submitted that the whole process was a sham that there was no actual redundancy and that she was unfairly dismissed. However, I note that both sides are in agreement that several hundred redundancies took place on a global basis within the respondent.

There is no dispute that the function that the complainant was assigned to ceased to exist in Ireland, and furthermore that the function she stretched into also ceased to exist in Ireland. On the basis of that agreed information it is hard to see how the complainant’s termination goes from a redundancy to an unfair dismissal.  Section 7(2) of the Redundancy Act gives five reasons as to why a redundancy may have been found to have occurred.  In the present case the decision by the respondent to terminate not just the complainant’s position but other positions of a similar nature lend itself to the conclusion that this was a genuine redundancy.  I am not satisfied that the complainant has presented evidence of it being otherwise.  Having regard to all the written and oral evidence presented, I find that the complainant’s termination falls within Section 7(2) (a), (b) and (c) of the Redundancy Payments Act, 1967.

Having regard to the foregoing, I am satisfied that the complainant’s termination falls under Section 4(c) of the Unfair Dismissals Act and accordingly I find that the complainant was not unfairly dismissed.

As to the matter of anonymisation, the default position is that parties are named in the decision and the hearing takes place in public.  Although individual Adjudication Officers may vary from this position, it requires the existence of special circumstances that warrant varying from the principle of open justice. 

The respondent voiced no objection to anonymisation other than to note that it should apply to all parties.  The complainant submitted post-hearing submissions regarding the exceptional nature of the circumstances she now found herself in

Usual circumstances giving rise to an anonymised decision include where a decision might identify a minor or where a hidden disability exists and to name the parties would identify someone with such a disability.  These circumstances are not there simply to enable a party to choose to be anonymised in any circumstance.  The option to anonymise is not limited to these examples and other information and circumstance may be considered.  I have given consideration to the reasons put forward at the hearing and in post-hearing submissions, and I am satisfied that anonymisation of this decision in warranted in the circumstances outlined therein.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissals Act – termination by way of redundancy – not an unfair dismissal