Complainant

Respondent

Parties

Laura  Kehoe

Vox Financial Partners Limited

Representatives

Alastair Purdy and Co. Solicitors

Niamh McGowan B.L. instructed by Maples & Calder Ireland LLP

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-00062855-001

17/04/2024

The complainant was employed by the respondent since 2nd January 2018 and was made redundant from her role as a senior consultant with effect from 3rd November 2023. The complaint relates to an alleged unfair dismissal in circumstances where the complainant states she was unfairly selected for redundancy.

Complainant’s Preliminary Point

The complainant’s legal representative stated that the complainant has lodged two separate complaints to the WRC alleging unfair dismissal as it is unclear as to the name of the correct respondent entity. The within complaint relates to Vox Financial Partners Limited. The other complaint (ADJ-00051361) relates to an unfair dismissal complaint against Treliant LLC.

It was confirmed by Counsel for the respondent at the adjudication hearing that Vox Financial Partners Limited is a subsidiary of Treliant LLC and is the correct respondent to the complaint. This clarification will be reflected in the adjudication decision relating to ADJ-00051361.

Submission

The respondent confirmed that the complainant was employed since 2nd January 2018 as a Regulatory Change Analyst and became a Senior Consultant on 17th August 2021. The respondent outlined that consultants compete for placement with clients in respect of the services they provide based on suitability and experience. If the consultants are not successful in being placed with a client, they are put “on the bench” which means they are not actively working with any client at the time but are paid their full salary

The respondent confirmed that the complainant was on sabbatical for one year commencing on 1st August 2022 and returned to her role on 1st August 2023.

The respondent stated that following her return from sabbatical the complainant was placed on the bench as there were no new projects available or suitable to her at the time. The respondent stated that between August and September 2023, the complainant was available to compete for placement with its clients, but no roles materialised, other projects did not proceed, or the complainant was unsuccessful in being placed with any of its clients.

The complainant was advised on 15th September 2023 that her role was at risk of redundancy and that a full consultation process would follow.

The respondent outlined that consultation meetings were held with the complainant on 19th September 2023, 28th September 2023, 26th October 2023 and 2nd November 2023. The respondent stated that during the period of consultation meetings, all possible alternatives to redundancy were considered, all queries raised by the complainant were addressed and all possible alternative employment options put forward by her were explored but unfortunately no viable options existed.

The complainant was notified on 3rd November 2023 that her role was redundant and she was provided with an opportunity to appeal. The complainant appealed her redundancy citing three grounds of appeal; a) the lack of transparency around the process, b) the criterion applied was not objective and c) that she was not provided with information relating to applying for open roles within the organisation.

The appeal was not upheld. In respect of the grounds of appeal, it was found that there was no evidence to suggest that the timelines were not made clear to the complainant or that her queries were not addressed. In respect of the objectivity of the redundancy criterion, this point was not upheld. It was noted that all roles that were non-revenue generating or on the bench were looked at as part of looking at “business criticality” and that was a reasonable commercial approach for the respondent to take. In respect of the third ground of appeal, this was not upheld based on the information provided regarding the advertisement on the respondent’s website and on the basis that no roles were filled during the redundancy process except one role that the complainant was considered for but not selected.

Legal Submissions

Counsel for the respondent contends that the termination of the complainant’s employment on the grounds of redundancy was fair and objective and was brought about by a genuine reduction in business levels. Counsel stated that an 80% drop in revenue from one of its main clients necessitated a change in how the respondent operated its business at the time.

Counsel stated that a genuine redundancy situation exists where the employer decides to carry on its business with fewer or no employees. Counsel quoted Section 7(2)(c) of the Redundancy Payments Act, 1967 in support of the respondent’s position in that regard.

Several cases were cited by the respondent in respect of the complainant’s redundancy and the selection criterion used in relation to same. Counsel cited the cases of St ledger v Frontline Distributors Limited [1995] E.L.R. 160 and JVC Europe Ltd v Panisi [2011] IEHC 279 in support of its position that it met the requirements of “impersonality” and “change” in relation to the redundancy process.

Counsel further cited the case of Employee v Employer (UDD 1414/2010) in respect of the criterion of the complainant being “on the bench” and not generating revenue during the period in question. It was argued that using the “chargeability” factor of the role was a reasonable criterion to use in the redundancy selection process.

In respect of its consultation process the respondent cited the case of Employer v Employer (UD1938/2009) in support of its position that it engaged in a full and fair consultation with the complainant and made every reasonable attempt to secure alternative employment options for her within the organisation. The respondent cited the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854 in support of its position in relation to considering alternative roles for the

Redress

Counsel for the respondent noted that the complainant, in her WRC complaint form, seeks reinstatement, reengagement and compensation. In respect of reinstatement the respondent’s position is that reinstatement is an exceptional remedy and should only be available in exceptional circumstances. The respondent cited the Supreme Court case of An Bord Banistíochta Gaelscoil Moshíológ v The Labour Court [2024] IESC 38 which states as follows:

[T]he remedy of reinstatement is exceptional in nature….., That remedy can only be properly granted where the court or tribunal has carefully assessed the interests of both parties to the arrangement and where, having done so, it provides clear and coherent reasons for the appropriateness of the remedy in the particular case. It is wrong to view reinstatement simply as punishment for wrongdoing on the part of the employer.

The respondent’s position is that reinstatement and/or reengagement are inappropriate remedies in the present case given the deterioration in relationships between the parties as well as the passage of time since the complainant was made redundant.

Mitigation of Loss

The respondent stated that it does not accept that the complainant has made adequate attempts to mitigate her losses. The respondent cited the cases of Sheehan v Continental Administration Co Ltd (UD858/1999), A Kitchen Porter v A Takeaway ADJ-00016112, St Columcilles (Kells) Credit Union Limited v Patrick Leneghan UDD1952, Synergy Security Solutions v Paul Dusa (UDD1911), AND Grainne Sherlock v Pluralsight Ireland Limited (ADJ-000044941) in support of its position that a complainant is legally required to make substantial efforts to mitigate losses and seek alternative employment.

Evidence

Witness 1 – Paul Walsh

The Senior Managing Director (Capital Market Solutions) gave evidence by affirmation at the adjudication hearing. The witness described the nature of the role and the fact that senior consultants competed to be placed with clients in respect of the services they provided. The witness stated that the clients choose the consultants following a competitive process and the consultants were then contracted to the clients.

In respect of the complainant, the witness stated that the complainant returned from sabbatical in early August 2023 and was “on the bench” as there were no suitable assignments for her at the time and nothing on the horizon in the near term. The witness also stated that a major client had reduced its staff numbers by 20,000 which in turn meant that there were less projects in place and fewer consultants needed. The witness noted a 60% reduction in revenue in 2023-2024. In addition, increased interest rates, increases in the cost of living and a downturn in the markets meant that there were fewer opportunities. The witness stated that the company needed to reduce costs by reducing its headcount. Of 120 consultants there were 11 on the bench at the time and with no possibility of further business it was decided that the roles that were not generating revenue would be deemed at risk of redundancy.

In relation to one of the possible alternatives, that project never came to fruition and the onboarding which the complainant stated she was involved in, never took place. The witness also stated that as opportunities did arise, the complainant and others were put forward but in respect of a number of projects, the complainant was not selected and, in some instances, projects did not materialise or were at lower grades than that of senior consultant. The witness also stated that the possibility of fully remote/hybrid working within Ireland didn’t materialise and relocating to other countries where a visa was required was not being supported at the time given the costs of that process. The witness confirmed that throughout the period of September – October 2023 all possible options were considered.

The witness confirmed that the final consultation meeting took place with the complainant on 2nd November 2023 and there were no further questions of clarifications from the complainant. In respect of new appointments, the witness stated that there was a broad list of new appointments at different levels in different locations. Specifically, the witness outlined new appointments that were announced at the time. These roles were across several areas but were either at levels lower than that of the senior consultant grade or were in locations that were not suitable to the complainant. There were further roles such as specialist engineer and software development which required different skill sets and two Senior Consultant roles also required legal and softwarequalifications.

Cross Examination

The witness confirmed in cross examination that the respondent was acquired by Treliant LLC for its European client base. The witness confirmed that the first indication of a requirement to cut costs came about in Q3 of 2023.

The complainant’s representative put it to the witness that the complainant was unfairly dismissed based on unfair selection for redundancy. The complainant’s representative stated there was no redundancy policy in place or matrix used, the complainant was not given the opportunity to influence the process or avail of unpaid leave and was also unsupported in obtaining a visa to relocate and remain in her employment in a different location.

In response, the witness stated that the selection process was HR guided and was based on those who were on the bench and not revenue generating. The witness also stated that the option of unpaid leave was not possible as there were no opportunities in the near term. In relation to the visa applications process, there was no assistance to anyone in terms of applying for visas as it was cost prohibitive. The witness reiterated that all possible alternatives to redundancy were explored between September and November 2023 but due to the lack of future opportunities and on the basis of the complainant being on the bench, there was no option but to make the complainant redundant.

Witness 2 – Colin Walsh

The Senior Managing Director (Global Delivery Centres) gave evidence by affirmation at the adjudication hearing. The witness stated that he was not previously involved in the redundancy process and chaired the appeal hearing. He stated that he was provided with the complainant’s grounds of appeal and stated that the appeal meeting took place on 21st November 2023. The witness stated that in respect of the lack of transparency in the process, he was satisfied that this was not the case and that all queries raised by the complainant were addressed and all alternatives explored. In relation to the “business criticality” selection criteria, the witness stated that other consultants who were engaged with clients on other projects were contracted to those clients following a competitive process and the possibility of a swap did not arise. The witness stated that he was satisfied the selection criteria was fair and objective because the employees on the bench were not generating revenue and there was an urgent need to reduce costs. In respect of other roles, the witness state that jumping between roles does not happen often as each role requires specific skill sets but that he had sought clarity in relation to other roles where the complainant was unsuccessful.  

Cross Examination

In cross examination the witness confirmed that he had confined the appeal to the grounds raised by the complainant and that he had reviewed the minutes of the previous meetings held in respect of the redundancy consultation process. The witness confirmed that the option of unpaid leave did not come up at the appeal. The witness stated that alternative roles in the US were not possible as there was no financial support in respect of the visa application process. The witness reiterated that he was satisfied that there was nothing untoward taking place in respect of the redundancies and that the process was transparent and objective.

Conclusion

The respondent concluded by stating that the complainant was not unfairly dismissed. The respondent stated that four consultation meetings were held with the complainant and every effort was made to secure alternative positions for her within the organisation prior to her redundancy and that a fair and thorough appeal process was also carried out. It is the respondent’s position that the complainant was fairly dismissed by reason of redundancy and that the complaint of unfair dismissal should fail.

Submission

The complainant contends that she was unfairly dismissed by way of unfair selection for redundancy. The complainant’s representative outlined that the complainant returned from a period of unpaid leave in August 2023 and was informed at a meeting on or about 15th September 2023 that her role was at risk of redundancy. The complainant, at the time, was of the view that she was in an onboarding process for a project that was to commence at the end of September so was surprised to hear her role was at risk of redundancy. The complainant confirmed that she was to consider alternative roles in the organisation and a further consultation meeting would take place to discuss same. The complainant subsequently provided details of suitable opportunities within the organisation and also suggested she was willing to relocate to the US. The complainant submitted a number of queries to the respondent in advance of the second consultation meeting being held on 28th September 2023 and again put forward alternatives and queried the fact that no other senior consultant appeared to be at risk of redundancy. A further consultation meeting took place in October 2023 at which the complainant was advised that there were no possible alternative opportunities in the organisation and that unpaid leave was not a possibility. The complainant was notified of her redundancy on 3rd November 2023. The reasons given to the complainant were a combination of a downturn in workstream from clients, a slowdown in the market and less business opportunities as well as high interest rates and inflation.

The complainant exercised her right of appeal on the basis that the redundancy selection process was unfair and lacked transparency. The appeal was unsuccessful, and the complainant was dismissed from her employment.

Legal submissions

The complainant’s legal representative outlined the provisions of the Unfair Dismissals Act, 1977 and specifically Section 6(4)c which provides that a dismissal is not unfair if it occurs wholly or mainly from the redundancy of the employee. Despite the provisions of Section 6(4)c of the act, the complainant’s representative contends that the WRC and Labour Court are still required to have regard to all the circumstances in relation to the dismissal.

The complainant’s representative cited the case of Lyons v Grangemore Lansdscapes Limited (UD541/2008) which concerned a surveyor who was made redundant. In that case a new employee was hired for which the complainant would have been suitable for. The EAT was not satisfied that the role was in fact redundant. In the present case, the complainant contends that a senior consultant was hired shortly after she was made redundant and she could have carried out the duties of the new employee.

The complainant’s representative further cited the requirement of impersonality in respect of redundancy as it is the role that it made redundant and not the person. In the present case, the complainant was on the bench, it was known she was on the bench and that was the criteria that the respondent used in respect of her selection.

The complainant also contends that, in the absence of a redundancy policy, the employer must still act fairly and reasonably in its selection criteria and engage in a meaningful consultation process. The complainant contends that this did not happen in her situation.

The complainant’s representative concluded the submission by stating that apart from the alternatives put forward by the complainant, there was no meaningful consideration given by the respondent to exploring alternatives that would retain the complainant in her employment. The redundancy process itself lacked objectivity and transparency and the dismissal was unfair based on the personal and subjective selection criteria used by the respondent.

Evidence

Witness 1 – Laura Kehoe

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated in evidence that she commenced in her employment in January 2018. The complainant commenced as a business analyst and was subsequently promoted to consultant and then to senior consultant. During the covid pandemic, the complainant worked remotely from Ireland for the US office which was based in New York. The complainant stated that the acquisition of the respondent meant her visa was void and she was long longer able to work for the US client. The complainant stated that more opportunities were expected because of the acquisition, and she had hoped she would be able to work again in he US. Prior to going on sabbatical, the complainant was engaged with a client and while there were discussions around postponing the sabbatical and extending the assignment, the project ended on the original date.

The complainant stated that on return from sabbatical in August 2023, she was engaged in an onboarding process and was not on the bench. The complainant stated that she was told she would be involved in training at that time. The complainant also gave evidence in relation to the circumstances where she was informed that her role was at risk of redundancy and that both she and the respondent principals would meet to discuss the alternatives as part of the consultation process. The complainant stated that she was very unclear about what was happening as she was not being informed whether others were also at risk of redundancy. The complainant stated that there was no redundancy policy in place or skills matrix used. The complainant put forward alternatives relating to other roles as well as the possibility or working part time or taking further unpaid leave. These were not considered by the respondent. The complainant also stated that her preference would have been to return to work in the US, but this option was made void because of the acquisition and the fact that there was no longer any assistance with the visa application process. The complainant stated that she was employed with the respondent for 5 years in the consultant industry and felt that she was dismissed unfairly following an unclear redundancy process that lacked transparency and objectivity. The complainant stated that due the unfairness of the process she appealed the decision to make her redundant but was unsuccessful in her appeal.

Cross examination

It was confirmed to the complainant in cross examination that there were also other roles that were at risk of redundancy at the time and while the complainant felt it was personal, there were in fact 11 people on the bench and of that number, eight roles were made redundant. Counsel for the respondent put it to the complainant that the respondent had looked at all possible alternatives but there were no options at the time or expected in the short term. In respect of other roles that were available, these were of a lower level to that of the complainant and in some cases such as the ISDA negotiator role, the complainant was not qualified for this role. The complainant confirmed that, once it was explained to her, she accepted she was not qualified for that role. In respect of operational roles, counsel confirmed that none were available and in respect of the onboarding process mentioned by the complainant, counsel confirmed that this project never came about. While it was confirmed that the complainant could apply for available positions, this was in circumstances where these were limited on the basis that there was a 60% downturn in business. By way of a response, the complainant stated that following the acquisition, there would have been an expanded client base. The witness re-iterated that the respondent had not given any consideration to her request for unpaid leave or the alternatives she had put forward. Counsel for the respondent concluded her cross examination by stating that the respondent had carried out a fair and transparent process involving multiple consultation meetings and had considered the plausible alternatives put forward by the complainant but in reality, there were no realistic options available and multiple roles were in fact made redundant and have not arisen since.

Conclusion

The complainant concluded by stating that the respondent’s consultation process was merely a box ticking exercise.  While redundancy should be impersonal and relate only to the role, this situation was entirely personal with no consideration given to the alternatives put forward by the complainant to remain in her employment. The complainant contends that the entire situation rendered her dismissal unfair.

The Applicable Law

Section 6(4)(c) 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.

The respondent contends that the complainant’s dismissal by reason of redundancy was fair in accordance with the legislation. The complainant’s position is that an unfair selection process lacking in objectivity and transparency rendered her dismissal unfair.

Both parties provided written submissions and gave evidence at the adjudication hearing

Mitigation of Loss

The complainant stated that she was dismissed with effect from 3rd November 2023 which was close to year end. The complainant began a temporary position in April 2024 which lasted until October 2024. Between October 2024 and the hearing date in February 2025, the complainant confirmed she had approximately 10 interviews. From reviewing the supplemental documentation, I am satisfied that the complainant continually made significant efforts to mitigate her losses from January 2024 until her temporary placement in April 2024 and again from October 2024 when the temporary placement ended.

Supplemental submissions

Both parties furnished supplemental submissions as requested on the relevance of Labour Court Determination No: UDD2151 in the case of Tanneron Limited v Gerard Conolin. “Tanneron.” In that case the complainant, while unsuccessful at first instance was successful in his appeal to the Labour Court.

The complainant in “Tanneron” had argued that the selection criteria used by the employer meant that he would be immediately identified as redundant and in those circumstances the redundancy criteria was subjective and personal in relation to him. The Labour Court was not satisfied that the employer had met the burden of proof in establishing that the criteria was objective and impersonal. The Court found in favour of the complainant in relation to his complaint of unfair dismissal.

In the within complaint, the complainant was on the bench and argued that using that criteria in relation to her was personal and subjective and lacked objectivity and that she was easily identifiable as the person to be made redundant.

The complainant’s representative sought the same level of extra scrutiny in this complaint as had been carried out by the Labour Court in respect of the respondent’s selection process in “Tanneron” which had been largely based on performance.The respondent’s representative sought to rely on the transparent and objective process that the respondent carried out and its original submissions relating to the fact that there were 11 consultants on the bench and that eight of those, which was the entire European base, were all made redundant following a huge downturn in business and the lack of future opportunities.

Redress

In the complainant’s referral to the WRC, all redress options were selected, namely re-instatement, re-engagement and compensation. Counsel for the respondent contends that re-instatement and re-engagement are not an option for the employer as there were multiple redundancies amongst the grade of senior consultants (8 out of 11) and roles at the complainant’s level have not re-arisen since. Notwithstanding its position on the fairness of the process and the duty of the complainant to mitigate her losses, the respondent contend that compensation is the only realistic redress option appropriate in relation to the complaint.

Conclusions

Having considered the submissions and evidence of both parties as well as the precedents cited, I am satisfied that the complainant’s employment ended fairly by reason of redundancy. While the complainant’s representative argued that the selection process was unfair and lacking transparency, I do not accept that this is the case. There were multiple consultation meetings between September 2023 and November 2023 and all possible alternatives to redundancy were considered. In my view, it is difficult to ground a claim for unfair dismissal when all eight consultants in the European base who were on the bench were made redundant. I accept the point relating to the impersonality issue and that it was clear who was on the bench and who would be made redundant, but I am satisfied that all remaining consultants were contractually engaged with clients and were generating fees. Where the other eight consultants were not fee generating and in the context of a significant downturn in business, it was reasonable in my view for the respondent to use the redundancy selection criteria it did. I also accept the point that there were many other factors at play and no other opportunities existed in the near term for the respondent or the complainant. I also note that these positions have not been filled since the complainant was made redundant and no further vacancies have arisen at her level.

 In all of the circumstances of the complaint, I find that the complainant was not unfairly dismissed.

I find that the complainant’s employment ended by reason of redundancy. Accordingly, I find that the complaint of unfair dismissal is not well founded.

Unfair dismissal, redundancy selection criteria