Complainant

Respondent

Parties

Sinead  Lawes

Joe Duffy Motors Limited

Representatives

Noel O'hanrahan Rutledge Doyle and Solicitors

Tara Cooney HR Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00068537-001

10/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00068537-002

10/01/2025

The Complainant on her complaint form detailed the Respondent as:

Joe Duffy Motors Trading as (if applicable): Joe Duffy Group

At the first day of hearing on the  1st May 2025 Mr Garry HR Consultant appearing for a company stated that the wrong entity had been named and the correct entity was Joe Duffy (Motors) Limited and not Joe Duffy Group.

The Complainant has opened documentation to this hearing where her employer makes a representation under the name Joe Duffy Group on many occasions. That may not be technically correct as the legal entity; however, that is how her employer has decided to communicate with her. On the 30th of July 2024 she was informed on headed paper Joe Duffy Group that her role was at risk.

On or about December 2021 she was informed again on headed paper Joe Duffy Group about her salary and bonus.

Again, using the same representation Joe Duffy Group, she was informed that her basic salary was €34,000 in a letter dated December 2023.

An annual appraisal form for 2022 also used the same heading and representation.

The Complainant also opened a Performance Improvement Plan dated the 11th of June 2024 again with the same heading and representation Joe Duffy Group.

The following companies are listed with the CRO with the name Joe Duffy:

Name

JOE DUFFY (MOTORS) LIMITED

Name

JOE DUFFY (AIRPORT) LIMITED

Name

JOE DUFFY DUN LAOGHAIRE LIMITED

Name

JOE DUFFY PROPERTY COMPANY LIMITED

Mr Garry was asked to make out his preliminary case at the hearing and declined to do so and was asked to open his legal authorities for doing so, which again he was initially reticent to do.

I refer to the commentary on the relevant case law concerning amending the WRC complaint form in Employment Law 3rd Ed, Bloomsbury:

Amendment of complaint form

[28.11]

The circumstances in which the details on a complaint form can be amended were fully considered by the Labour Court in An Employer v A Worker. 28 In this case, the complainant alleged that she was discriminated against in the course of applying for a position with the respondent company. The company contended that she had not applied for a job but for a self-funded training programme. The Labour Court was satisfied that, if the interview following which she was not selected was not directed at access to employment within s 8(1)(a) of the Employment Equality Act 1998, it was ‘most undoubtedly directed at vocational training’ within the meaning of s 12(2). Having regard to the observations of McGovern J in County Louth VEC v Equality Tribunal 29 that the complaint form was only intended to set out in broad outline the nature of the complaint and that it was permissible to amend a claim set out therein ‘so long as the general nature of the complaint...remains the same’, the Court was satisfied that the complaint form could be legitimately amended to reflect the proper construction of the claim.

In Ballarat Clothing Ltd v Aziz, 30 the complainant (who was not legally trained or advised) incorrectly filled in the complaint form naming the individuals who were directors of the company, but not the company itself, as the employer. The Equality Tribunal dismissed the complaint under s 77A (1) of the 1998 Act as being ‘frivolous, vexatious or misconceived’. The complainant appealed to the Labour Court and the company submitted that the Court had no authority to substitute it for the two named directors.

The Court noted that the company acknowledged that it was aware from the commencement of the case that an error had been made and that it would suffer no prejudice were the appeal to be allowed. In these circumstances, the Court felt that, not to allow the appeal for such a technical reason would be a ‘grossly disproportionate response’.

In Department of Foreign Affairs v Cullen, 31 however, the Labour Court said that an amendment would not be allowed if its effect would be to permit the complainant to pursue a complaint that would otherwise be excluded by s 77(5) of the 1998 as being statute barred

I determine that the complaint is properly before me, no prejudice arises to the Respondent.  The complaint form in fact was received and sent to the employer who consistently had represented in communications to the Complainant that it was the Joe Duffy Group. That may not be a legal entity; however, that is how the employer described itself. It would be unjust to disallow a claim based on how the employer has chosen to label itself when communicating with the employee.

Based on the representation made by Mr Garry the Respondent’s name was changed to Joe Duffy Motors Limited and that the Respondent would attend at a reconvened hearing.

In the Supreme Court judgement Felix Moorhouse and the Governor of Wheatfield Prison the right to amend was addressed, [ Record No. 2014/128] and at the following at paragraph 42:

It is clear, of course, that courts do have a discretion to amend. That discretion must beexercised judicially. Where an amendment may be made without prejudice to the other party, to enable the real issues to be tried, it should be allowed. A court must consider whether prejudice can be overcome by an adjournment. If so, that amendment should be made, and an adjournment, if necessary, granted, to overcome any possible prejudice. If the amendment puts another party to extra expense that can be regulated by a suitable order as to costs, or by the imposition of a condition that the amending party shall indemnify the other party against such expenses (see the dicta of Lynch J. in Director of Public Prosecutions v‘ Corbett [1992] ILRM 674 at page 678, quoted in Croke, cited earlier. A court will, inter alia, consider an applicant’s conduct in the proceedings, and any question of delay. It is now long established that the function of courts is to decide the rights and duties of parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. As Bowen L.J. pointed out in Cropper v. Smith (1883) 24 Ch. D. 305

“Courts do not exist for the sake of discipline but for the sake of deciding matters and controversy”

I am satisfied that the overriding obligation is for the controversy to be heard between the parties and that no prejudice arises to the Respondent as the matters complained of have been detailed and clearly received by them as attested by Mr Garry’s attendance at the hearing.

Finally, Mr Garry stated that JOE DUFFY (MOTORS) LIMITED was the correct entity and stated that the company would attend at the next scheduled date if sent to them. The form was so amended and relisted for hearing.

The Respondent has stated that the Respondent was made redundant arising from the loss of the Ford franchise. The Complainant stated that her role was not confined to Ford. In fact, the Complainant’s role involved administrative duties across the Joe Duffy Group. The Complainant maintains that the framing of her redundancy as Ford Senior Vehicle Administrator is contrived. It was classed solely as that to target her for redundancy.

The employment records show that in fact she worked for other franchises and Ford was not her primary responsibility.

The Complainant had a very good performance record with the Respondent as evidenced by the performance rating scales over many years. However, that solid performance was marked down when she received her performance rating on the 11th of June 2024 as requiring improvement and placed on a performance improvement programme 4 weeks before being told her job was at risk of being made redundant.

In a supplemental submission made on or about the 4th of July 2025 the Complainant referred to the previous hearing and stated that the alleged notice of Redundancy was issued in the name of the Joe Duffy Group. There are various legal entities detailed on the Complainant’s payslips.

The Complainant’s date of dismissal was the 13th of August 2024, and she found alternative employment on or about the 10th of December 2024.

The Complainant commenced employment as a trainee vehicle administrator (Sales) on the 20th of December 2019. On the 24th of January 2020 she signed a voluntary employment agreement which authorised her employer to assign work duties in different motor dealerships and locations within the Joe Duffy Group.

 During her tenure as a valued and competent member of staff the Complainant carried out her workplace duties in various Group Dealerships without incident. However, in and around December 2021 Sinead announced she was contemplating resigning from her current position to take up a new role with another dealership.

The Complainant was offered the position of senior vehicle administrator (Sales) with responsibility for the Ford Motor Dealerships located in Athlone, Finglas and Cork to retain her.  The Complainant worked well in her new role in Ford. However, following the loss of the vehicle (Sales) franchises in Athlone, Finglas and Cork in July 2024, due to the impact of this to the business, the Complainant was informed her employment position as senior vehicle administrator Ford (Sales) was at risk of being made redundant.

 The Company entered a period of consultation with the Complainant and encouraged her to apply for alternative positions within the Joe Duffy Group. She applied for one position and was unsuccessful. While exercising her entitlement to work out her statutory notice the Complainant did not apply for any other alternative advertised employment position vacancies during this period. It is important to note three of her Ford Franchise workplace colleagues were also made redundant at the same time as the Complainant.

 On being made redundant the Complainant received her full payment entitlements in respect of accrued annual holiday leave of 7.5 days and a statutory Redundancy payment of €6,180.00 in compliance with the Redundancy Payments Act 1967 as amended.

Unfair Dismissal

The Employer has every right to re-organise how work is done either based on the need to be more efficient or for some other reason such as the requirement to reduce costs or loss of a franchise such as in this case.  However, the essential characteristic of redundancy is that it is an impersonal decision:

At section 7 of the Redundancy Payment Act 1967 as amended it states:

(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 Employer in this case states that the selection process was impersonal, as all employees who primarily worked on the Ford franchise were made redundant.

However, section 6 of the Unfair Dismissals Act as amended states:

(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, and…

The Complainant has made out a case that the Employer acted unreasonably and unfairly towards her. It had  a duty to engage in consultation with her which it failed to do and to explore alternatives, particularly as she had worked on several car franchises over the years, her role was not primarily linked to the Ford franchise that was lost. In fact, the selection process was personal as several weeks prior to her role being put at risk she was placed on a performance improvement programme, and over many years of employment had been rated strong other than the most recent review.

I note in Redmond on Dismissal Law 3rd Ed:

[17.29]

In Sheehan and O’Brien v Vintners Federation of Ireland Ltd 41 the EAT held that the claimants had 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 the work which would have realised significant savings’. 42

I note Regan and Murphy Employment Law 2nd Ed:

Individual consultation

[19.80]

With regard to an employer’s obligation to consult in the context of individual redundancies, the principles are well summarised by the English EAT in the case of Mugford v Midland Bank plc 130 as follows:

(a)where no consultation of any kind has taken place, the dismissal will normally be unfair, unless the Tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in that particular case.

(b)consultation with the trade union over selection criteria does not of itself release the employer from consulting with the employee individually, who is identified for redundancy.

(c)it will be a question of fact and degree for the Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render his dismissal unfair, viewing the overall picture up to the date of termination.

In Cronin v RPS Group, Tallaght UD 2348/2009 and cited in the Arthur Cox yearbook 2011 the tribunal determined that:

The EAT accepted that a genuine redundancy situation existed but concluded that the employer did not act reasonably when it came to selecting the claimant for redundancy. It cited the following grounds for upholding the claim:

failure to advise the claimant of the criteria to be applied for redundancy;

failure to give her the opportunity to make representations on her own behalf in respect of those criteria; failure to provide an appeal mechanism for the claimant; the company adhered rigidly to a system of selection that did not provide for any consideration of redeployment; failure to have regard to the claimant’s length of service.

There is very little evidence that the Respondent had regard to the Complainant’s service and her previous experience working across several Car franchises. The process depended solely on vacancies arising that the Complainant could apply for. While a role maybe made redundant, that does not necessarily follow that the incumbent should be selected for redundancy.

In O’Rourke v Valcourt Limited [2015] ELR 209, while criticising procedural failings in the process; however, it was decided that did not negate the fact that a genuine redundancy existed, and that the selection was fair.

Redmond on Dismissal Law 3rd Ed, Bloomsbury, 2017, referenced A Hotel Manager v A Hotel and Spa Resort Adj-00015257:

“Thus, even where an employer can be criticised for some elements of its interactions with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

It can be argued that while many procedural accommodations are desirable; none are absolute (Nigrell v Graham UD/690/2013).

 It is clear on the evidence that the decision maker did not consider the Complainant’s request to be redeployed and to be given other work. The Complainant stated that her work was not primarily linked to the Ford franchise and was more evenly spread among other car franchises. The Complainant was asked to apply for vacant roles and while she applied for one role, after being unsuccessful she stopped applying for roles. It is also the case that the Complainant based on her own evidence was not willing to be redeployed to a lower grade  role or to compete for a lower grade role vacant at the time.

The Complainant and Respondent both opened payslips about the paying legal entity at various calendar dates. Several entities have been named on these payslips:

·        Joe Duffy (Motors) Ltd BMW Admin October ‘20

·        McAllisters Garage Ltd Audi and the role is Vehicle Admin November `’21

·        JBDL Limited T/A Finglas Ford  March 2023

The Risk of Redundancy letter dated 15th July 2024 stated that the Complainant’s role was at risk due to the loss of the Ford franchise. However, a distinction needs to be made between the loss of a specific role and the selection of the incumbent for redundancy.

 That consultation process arguably should have considered administrative roles across the Joe Duffy Group, that in turn may have identified someone else to be made redundant, objectively, and fairly.  The consideration of other alternatives to redundancy was not seriously explored having regard to her service when compared to the other personnel and her ability and prior experience working across the group on different franchises.  When combined with the failure to meaningfully consult  with the employee, the Complainant contends that the consultation process is flawed and fatal having regard to the legal test as set out in the Act at s 6(7).

The onus is on the employer to demonstrate that they acted fairly and reasonably. The employer had the right to reorganise and reduce headcount. However, the employer must also demonstrate that they acted reasonably in choosing this employee when other personnel were retained by the Group. That is particularly so as the Complainant had a clause in her contract which allowed her to be moved to other legal entities in  the Joe Duffy Group of companies.

 What is crucial is to assess whether the decision maker at the time of making the decision applied objective and fair criteria?

The presumption of unfairness must be rebutted by the employer and while they have demonstrated that the complainant’s role was no longer required; they have not demonstrated that they acted reasonably before they made her redundant. The case law does demonstrate that the decision in the round must be looked at. However, that is also based on the presumption that the decision is unfair until rebutted and the requirement to demonstrate that the employer acted reasonably. The employer has provided no evidence of assessing any other alternative other than to make this employee redundant. While other personnel were made redundant, they held different roles, and the Complainant argued the Group continues to employ others in roles similar to her role.

A decision to make an employee redundant must be impersonal; limiting the review to one role against the backdrop of other personnel being retained in administrative roles, where redeployment across the Joe Duffy group is contractual and common place, where the Complainant worked across the Group on several car franchises, is not objective and fair, where the reasons for that decision are not persuasive. As Charleton J determined in JVC Europe Ltd v Jerome Ponisi [2012] 23 E.L.R. 70:

2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended ( “the Act of 1977” ), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. Sections 6(1) and (2) of that Act, in their amended form, provide:

In this case the selection process was not considered and the consultation process offered little in the way of an open exploration of alternatives to this person being made redundant and on balance the evidence indicates that the process was predetermined.

The Complainant was on a  gross  monthly salary of €2833.33. Allowing for the facts of this case, the relationship  between the parties has in fact deteriorated where continuing in employment with the Respondent would be stressful. As alternative employment has been found, compensation is the more appropriate redress in this case. The financial loss is of the order of €11,000.

Unfair Dismissal 00068537-01:

I find that the Complainant was unfairly dismissed. A decision to make an employee redundant must be impersonal. Limiting the review and consultation to one administrative role against the backdrop of other personnel being retained in administrative roles linked to other franchises, where redeployment across the Joe Duffy group is contractual and common place is not reasonable. This is particularly so where the Complainant worked across the Group on several car franchises and therefore is not objective and fair.  It is far from clear that the Complainant’s job was entirely linked to the Ford franchise. In this case the selection process was not considered and the consultation process offered little in the way of an open exploration of alternatives. On balance the evidence indicates that the process was predetermined.

The complaint is well founded.

The Complainant was on a  gross  monthly salary of €2833.33. Allowing for the facts of this case, the relationship  between the parties has in fact deteriorated where continuing in employment with the Respondent would be stressful. As alternative employment has been found, compensation is the more appropriate redress in this case. The financial loss is of the order of €11,000

The employment ended on the 13th of August 2024, and the Complainant commenced a new role on the 10th of December 2024.

I order the Respondent to pay compensation to the Complainant of €11,000 in addition to the  payments already made under her statutory rights as detailed in the Respondent’s submission that relate to statutory redundancy, holiday pay and notice.

Failure to keep records 00068537-02:

In the Complaint form the claim is detailed as:

On behalf of [Complainant], we requested all of her files from HR. However, the files provided were incomplete and did not include documents such as Sinead's employment contract, a signed employee handbook, or any records of her previous illnesses. Notably, there is no documentation of the stroke [Complainant] suffered on-site on November 30, 2022, for which an ambulance was called. Additionally, there are no records of her return to work on December 12, 2022, or any documentation of the sick leave she took due to stress on June 22, 2023.

This complaint was made under:

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I.

The Complainant in this case is employed in an administrative role.

The second complaint was not adequately pleaded at the hearing or in the written submission concerning what statutory  breach has occurred. As the complaint has not been adequately particularised and pleaded under a relevant and specific statutory provision, I dismiss the complaint and find that it is not well founded.

Unfair Selection