Complainant

Respondent

Parties

David  Henderson

The Bohemian Football Club Company Limited by Guarantee

Representatives

  Self-Represented

Matt Devaney

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-00068971-001

31/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977

CA-00069197-001 WITHDRAWN

11/02/2025

The Complainant contended that he was unfairly dismissed in a sham redundancy process and in the absence of any fair procedures. The Respondent denied the Complainant’s complaint in its entirety asserting that the Complainant was dismissed by reason of redundancy and that fair procedures were applied.

The Complainant was not represented at the hearing and made his own case. He relied on the narrative as outlined in the WRC Complaint Form, written submissions and supplemental documentary evidence submitted to the WRC in advance of the hearing in support of his case. No objection was raised to the Complainant reading from the narrative on his complaint form and the written submissions in the making of his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent was represented by its President who gave oral evidence on behalf of the Respondent. The evidence adduced by the Respondent’s President was challenged as appropriate by the Complainant. The Respondent submitted no documentation to the WRC.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted by the Complainant and the oral evidence adduced at the hearing.  

The Complainant contended that he was unfairly dismissed in a sham redundancy process and in the absence of any fair procedures.  The Respondent maintained that the Complainant was properly and fairly made redundant.  I am therefore required to determine whether the Complainant has been fairly dismissed by reason of redundancy. 

As the fact of the dismissal was not in dispute the evidential burden of proof rested with the Respondent to establish that the Complainant’s dismissal was fair and reasonable in the circumstances.

It is firstly necessary to set out the requisite statutory provisions pertaining to this complaint. 

In the instant case the Respondent seeks to establish that the dismissal of the Complainant was not an unfair dismissal as the dismissal resulted wholly or mainly from the redundancy of the Complainant. In making this assertion the Respondent will have to establish that the redundancy was a genuine one and not a sham for getting rid of the Complainant. Redundancy is defined by Section 7(2) of the Redundancy Payments Act 1967 (as amended) 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 applicable portions of Section 6 of the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) provide as follows:

(1) 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.

(6) In determining for the purposes of this Act whether the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the 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:

... 

(c) the redundancy of the employee,

and…

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour 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,

…

Subject to the generality of Section 6(1), Section 6(4)(c) of the 1977 Act provides that the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy.  As observed by Charlton J. in the leading case of JVC Europe Ltd v. Ponisi [2012] E.L.R. 70: 

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite.  Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights.” 

The legislation as interpreted by caselaw including that cited above requires the employer to (1) establish that a genuine redundancy situation existed and if so, that the dismissal resulted wholly or mainly from redundancy and (2) conduct itself reasonably throughout including adherence to fair procedures.  This includes a fair selection process and the taking of reasonable steps to identify alternative employment.  Invariably, these requirements will be inextricably linked.  Where an employer has no agreed redundancy selection policy, it is well-established in caselaw that the employer must act fairly and reasonably. 

Where an employee has been dismissed and the dismissal is found to be an unfair dismissal 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 not exceeding 104 weeks remuneration. The acts, omissions and conduct of both parties will be considered when calculating 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.  

The Respondent’s President gave evidence that the Complainant’s dismissal arose by reason of redundancy. He stated that the League of Ireland season runs from February to November each year and that there had been significant losses in 2023 and the projected losses for 2024 had come to fruition. He stated that the budget for 2025 was reviewed in late October / early November 2024 and that cutbacks were needed. As part of the review process the Respondent’s Board of Management looked at the Complainant’s position which the Respondent’s President simply described as “recruitment”.  Despite being questioned by the Adjudication Officer the Respondent’s President was not in a position to describe precisely what functions the Complainant carried out for the Respondent which is astonishing given his position as the President and Chairman of the Board of Management of the Respondent football club and given the fact that he was involved in the decision to terminate the Complainant’s employment.

The Respondent’s President stated that the decision was made at a Board meeting in early November 2024 that the role of recruitment was not needed. The Respondent’s President was not in a position to say on which date the Board meeting took place however following the Board meeting he instructed the Respondent’s Director of Football to inform the Complainant that his employment was being terminated. The Director of Football had no involvement in the decision to terminate the Complainant’s employment however he was responsible for all football operations within the Respondent and therefore deemed by the Respondent to be the appropriate person to communicate with the Complainant. The Respondent’s President confirmed that he advised the Director of Football that the instruction to be communicated was that the Complainant’s “services were no longer required and that his services were being dispensed with”. He confirmed that while the Board of Management made the decision to terminate the Complainant's employment neither the President nor any other member of the Board engaged in communication, whether oral or in writing, with the Complainant prior to him being advised that his employment was being terminated.

In response to questions from the Adjudication Officer the Respondent’s President confirmed that the Complainant was not put on notice that the Respondent was considering redundancies within the football club, he was not put on notice that he was at risk of redundancy, there was no consultation or redundancy process carried out by the Respondent, there was no consideration given to possible alternatives to redundancy, the Complainant was not given the opportunity to make proposals that might avoid redundancy and the Complainant had no forewarning that the purpose of the telephone call with the Director of Football on the 30th November 2024 was to advise him that his employment was being terminated. The Respondent’s President also confirmed that prior to the telephone call on the 30th November 2024 the Complainant was not aware that any complaints had been made against him, whether by third parties, employees of the Respondent, employees of the FAI or otherwise and whether orally or in writing.

The Complainant presented as a credible witness and gave evidence of the history of his involvement in various aspects of football, both in Ireland and abroad, as a player, scout and coach. His most recent period of employment with the Respondent commenced on the 1st January 2023. He earned €250 net per week and he carried out various roles for the Respondent including head of recruitment, men’s first team goal keeper coach, women’s first team coach, chief scout for the Academy and liaison with the Respondent’s partner club. He linked in with the Director of Football on all roles.

According to the Complainant the League of Ireland season ended in November 2024 and no issues had been raised with him. It had been a successful season from a recruitment perspective with three recruits in the men’s first team squad. Once the League of Ireland season ended the Complainant’s primary focus was on grassroots football.  On the 30th November 2024 he received a telephone call from the Respondent’s Director of Football informing him that he was being removed from his position under the instruction of the Board of Management. The Complainant gave evidence that he was informed that the Board of Management had instructed the Director of Football to “get rid” of him. Initially there was reference to it being a budgeting issue but when pressed the Director of Football accepted that that did not make sense given the various roles carried out by the Complainant for the sum of €250 net per week. During this conversation the Director of Football referenced anonymous verbal complaints and a historic letter of complaint made against the Complainant as the reasons for his dismissal. The Complainant stated that no prior warning, investigation or opportunity to respond was provided to him prior to his dismissal.

Despite multiple requests to provide the Complainant with details of these allegations, including a copy of the supposed letter of complaint, the Complainant was denied access to any evidence or the opportunity to fully respond.

Following his dismissal he wrote to the Director of Football on the 1st December 2024 requesting clarification and evidence of the allegations being made against him. He received no response so he wrote to the Respondent’s Board of Management on the 11th December 2024 wherein he requested full disclosure of the allegations made against him, a copy of the historic letter of complaint and an opportunity to defend himself. The Respondent responded citing financial reasons as the primary cause of his dismissal while also acknowledging that negative feedback about the Complainant had been received but again refusing to provide specific details.

Due to the nature of the various roles carried out by the Complainant for the Respondent, particularly his involvement with underage Academy players and the women's team, he escalated his concerns to the FAI Safeguarding Department as he believed that the allegations, if legitimate, could have serious implications for his reputation and professional standing. He was also of the belief that if the allegations existed they should be formally investigated to ensure fairness to both himself and the potential complainants. The Complainant requested that the FAI contact the Respondent to obtain the historic letter of complaint and conduct an independent review. On the 14th January 2025 the FAI’s Child Welfare and Safeguarding Manager confirmed to the Complainant that the Respondent had informed her that no  letter of complaint ever existed. When questioned by the Adjudication Officer the Respondent’s President confirmed in evidence that no letter of complaint ever existed.

According to the Complainant this contradicted the statements made by the Director of Football who advised the Complainant that he was informed by the Respondent’s Club Secretary of a letter of complaint, a letter which the Respondent relied upon as a basis for the Complainant’s dismissal.

The Complainant stated that he did not accept that a genuine redundancy situation existed within the Respondent at the date of his dismissal and that he was dismissed under the guise of a redundancy. He gave evidence that the handling of the situation by the Respondent had caused him significant personal and professional harm including severe emotional distress and anxiety leading to a relapse of historic mental health issues, damage to his professional reputation in football particularly in roles involving young players and the women's game, financial and career instability resulting from an unfair and opaque dismissal process and a lack of safeguarding and pastoral care from the Respondent throughout the whole ordeal.

Despite the Complainant’s repeated requests and attempts to obtain clarity, transparency and due process he gave evidence that he was met with contradictory statements and an ongoing refusal by the Respondent to provide him with evidence and an overall failure on the part of Respondent to uphold basic fairness.

Findings

The Respondent argued that the redundancy of the Complainant arose as a result of the financial circumstances which the Respondent found itself in in late October/early November 2024. I find however that there was no evidence adduced to by the Respondent to substantiate the assertion that the financial position of the Respondent was such that it would justify the redundancy of the role of recruitment and there was no documentary evidence provided by the Respondent to the hearing in relation to the financial position of the Respondent. Furthermore, it is difficult to reconcile how the Complainant's role was specifically selected for redundancy as the Respondent’s President was not in a position to give evidence of precisely what functions the Complainant carried out for the Respondent save to say “recruitment” and he accepted, after hearing the Complainant’s direct evidence, that the Complainant had a multi-faceted role with the Respondent. It is noteworthy that there was a marked absence of the minutes of any meeting at which the Respondent’s Board of Management made the decision to make the Complainant’s role redundant.

Whilst the Complainant was initially informed on the 30th November 2024 that there were “budgeting issues”, he gave evidence that he and the Director of Football were ad idem that given the Complainant’s net weekly wage “budgeting issues” as the justification for Complainant’s dismissal did not make sense.The Director of Football went on to detail “the other issues”, as they were described, he was instructed to convey to the Complainant which can only be described as issues of misconduct and which it was accepted by the Respondent’s President went uninvestigated and were uncorroborated. Astonishingly, when questioned by the Adjudication Officer the Respondent’s President confirmed in evidence that no letter of complaint ever existed.Taking into consideration the evidence of the Respondent’s President and the Complainant and the documentation furnished to the WRC I find that these allegations were a gross fabrication designed to, for whatever reason, get rid of the Complainant. I therefore find that there was no evidence before the WRC to support the Respondent’s contention that a genuine redundancy situation existed within the Respondent or that the Complainant’s dismissal arose wholly or mainly as a result of redundancy.

Furthermore, I find that the Complainant’s dismissal was not fair or transparent and the Respondent did not meet its obligations to conduct itself reasonably. Significantly, in making its decision to dismiss the Complainant by reason of redundancy the Respondent did not put the Complainant on notice that the Respondent was considering redundancies within the football club, the Complainant was not put on notice that he was at risk of redundancy, there was no consultation or redundancy process carried out by the Respondent, there was no consideration given to possible alternatives to redundancy, the Complainant was not given the opportunity to make proposals that might avoid redundancy and the Complainant had no forewarning that the purpose of the telephone call on the 30th November 2024 with the Director of Football was to advise him that his employment was being terminated. Despite relying on redundancy as the basis for terminating the Complainant’s employment this was ultimately not the reason given to the Complainant by the Director of Football when he acted on the instructions of the Board of Management to inform the Complainant, as the Respondent’s President stated in evidence, that his “services were no longer required and that his services were being dispensed with”.

Taking into consideration the evidence of the Respondent’s President and the Complainant and the documentation submitted to the WRC I find that the Respondent showed a cavalier disregard for due process and an unmitigated disregard for the law. From the evidence adduced at the hearing it was apparent that the Complainant remained involved in football at League of Ireland, college and grassroots level because of his love of the game of football. He was was not only an employee of the Respondent but a former player and the treatment he was subjected to by the Respondent was shocking. I find that the dismissal of the Complainant was nothing more than a sham redundancy carried out in a ruthless and dishonest manner without a single thought for the personal damage the Respondent was inflicting on the Complainant.

I find that the redundancy was used as a cloak in the dismissal of the Complainant and that the dismissal was unfair because the redundancy was not genuine and did not comply with fair procedures. In all the circumstances of the instant case I find that the complaint is well-founded.

CA-00068971-001

Having regard to the written and oral evidence presented in relation to this complaint my decision is that the Complainant was unfairly dismissed from his employment with the Respondent. In considering the appropriate remedy, I note that the parties’ preferred remedy is compensation.

In deciding on the level of compensation to award I note that the Complainant has been out of work since the 5th January 2025 and I am satisfied that the Complainant’s efforts to mitigate his ongoing loss, in all the circumstances of the instant case, have been reasonable.

I have had regard to section 7(2)(a) of the 1977 Act which provides that in determining the amount of compensation payable regard shall be had to “the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,”

I also have regard to the Labour Court decision in the case of Obasanjo Olajubu v Wasdell Europe UDD 2449 where it was highlighted that: 

”An award of compensation must be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal”.

Considering all of the foregoing I award the Complainant compensation of €26,000, which represents the upper limit that I am in a position to award, which I deem to be just and equitable having regard to all the circumstances.

CA-00069197-001

CA-00069197-001 is a duplicate complaint and was withdrawn at the commencement of the hearing.