Complainant

Respondent

Parties

Igor  Kushnir

Bewley's Tea & Coffee Limited

Representatives

  Self

Paul Gough Beauchamps

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-00070573-001

04/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070573-002

04/04/2025

The Complainant made a claim pursuant to Section 6 of the Payment of Wages Act, 1991 and a claim pursuant to the Unfair Dismissals Act 1977 (as amended).

The Respondent’s business involves the provision of coffee and coffee machines to hotels, petrol stations, retail and restaurants throughout Ireland. The Complainant commenced employed with the Respondent on 2 May 2023 as a Field Service Engineer in the Dublin / Leinster team. His weekly gross remuneration was €1.207.40. The Complainant’s employment was terminated on the 25th of November 2024. The Respondent contended that the Complainant’s employment was fairly and lawfully terminated based on the redundancy of his position. The Complainant contended that he was unfairly dismissed.

The matter was heard over three days, on the 16th of October 2025 and the 27th and 28th of January 2026. The Complainant represented himself. The Respondent was represented by Mr. Paul Gough Solicitor of Beauchamps Solicitors. The Complainant gave evidence and made submissions. The Respondent called two witnesses. All witnesses gave evidence on affirmation. 

Pay Claim

The Complainant was eligible for a bonus which was linked to KPI. If KPI were achieved, then a bonus would be payable in Q1 2025 subject to the employee still being employed by the business. The Complainant’s terms of employment state:

‘Bonuses, where applicable, are subject to the employee continuing to be an employee of the Company at the time bonus falls due to be paid as determined by the Company’

Consequently, as the employee was not employed at the time that bonuses were due to be paid, the Complainant had no entitlement to a bonus payment.

Redundancy:

Following a very poor financial result in 2023 and in the face of increasing coffee costs, in 2024 the Respondent commenced a cost reduction exercise involving redundancies across the business in areas including finance, operations, supply chain, training, sales and marketing reducing headcount by 15%. At that time one of the Respondent's largest customers, completed a refurbishment and upgrade of its coffee machines which resulted in less service calls for the Field Service Engineering team. The Respondent had already experienced a reduction in service calls and on that basis and in view of the requirement for cost reductions in the business, it was decided to reduce the number of Service Engineers by two. Reducing headcount by 1 in the Dublin / Leinster Team and 1 in the Country Team.

The Respondent decided to use "last in first out" as the method for selecting employees for redundancy as this criterion had been adopted by the Respondent in previous redundancies.

The Claimant had been employed by the Company for approximately 18 months and was one of the most recent appointments and accordingly he was informed that he was at risk of redundancy on 14 October 2024 and asked to attend an initial consultation meeting on 15 October. He was invited to bring a representative with him to the meeting but declined to do so and attended by himself. He was informed that the business had been through a restructuring exercise and the Respondent had reviewed the service activity in the business and they intended reducing head count by two, 1 in Dublin and 1 in Cork/ Kerry. It was explained to him that employees were being selected on a last in, first out basis which meant that he was at risk of redundancy. He was informed that there were other roles available in the business at that time, including factory maintenance technicians, a general operative and barista trainer, however he did not request further details of those roles. He was informed that if he was made redundant that he would be paid one months’ notice and as a gesture of goodwill he would receive a further payment of €5,234 subject to signing a settlement agreement. The Claimant had no questions, but he was clearly not happy and appeared to link the proposed redundancy with a verbal warning issued to him in May 2024, five months earlier.

The Claimant attended a further consultation meeting on 22 October, and he was informed later that day that he was being made redundant and that one months’ notice would issue on 25 October. He was informed that if he wanted to appeal, he should submit a notice in writing to Liz Doyle, HR Manager, who would appoint a suitable individual to hear the appeal, however he did not submit an appeal.

During the notice period, a Field Service Engineer in Cork resigned from their position. The Complainant was informed of this vacancy on 20th November 2024 but did not apply.

The Complainant was made redundant on 25 November 2024. The Company received correspondence from his solicitor claiming that he had been unfairly dismissed on 21 February 2025.

Verbal Warning

In his claim form and in subsequent correspondence from his former solicitors, the Complainant alleged that the real reason for the termination of his employment was connected to a verbal warning he received in May 2024. On that occasion a verbal warning was issued to the Complainant following a meeting with his manager regarding a customer complaint. The warning was specifically for disrespectful communication, inappropriate language, and conduct. He appealed that decision and the decision was upheld. The verbal warning was in place for 6 months. For the avoidance of doubt there was no connection between the verbal warning put in place in May 2024 and his subsequent redundancy in November 2024.

Redundancy

Section 6(4) of the Unfair Dismissals Acts 1977 specifically provides that an employee may be dismissed if that dismissal results wholly or mainly from “the redundancy of the employee”. The burden of proof is on the employer to establish the legitimacy of any redundancy dismissal.

Section 7 of the Act provides that 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 –

…(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.

The change in the structure of the organisation which resulted in the redundancy of the Field Service Engineer role clearly falls within the definitions at (c) above. i.e. that the employer has decided to carry on the business with "fewer or no employees".

Following the redundancy of the Claimant workload was divided up amongst the remaining team of engineers and he was not replaced. In their claim form his solicitors allege that "our client instructs us that the Company is hiring contractors to go to the service stations close to him and to sites located beside where our client resides in Dublin." For many years the Respondent has used contractors, to cover specific geographic areas who would in certain scenarios support the workload nationwide. No contractors were hired to replace the Complainant as he has alleged. The Field Service Engineer team currently comprises of 16.

Fair procedures

Section 6(7) of the UD Acts provides that: “in determining if a dismissal is an unfair dismissal, regard may be had… to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

It is submitted that the procedures adopted by the Company were reasonable and complied with best practice, as follows

-            The Claimant was put on notice that his role was at risk of redundancy.

-            He was invited to two consultation meetings to discuss the proposed changes to the workplace and his possible redundancy.

-            He was invited to bring a representative and informed of other opportunities that were available in the business.

-            He did not ask any questions, although he did allege that his redundancy was linked to a verbal warning given to him in May.

-            He was subsequently provided with an opportunity to appeal the decision and did not exercise that right.

Summary

In the leading High Court Judgment in Ponisi -v- JVC Europe Ltd (2011) IEHC 279 it was held: “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.”

The decision to make the Complainant's role redundant was entirely impersonal and was based solely on changes introduced by the Company to address its costs at that time. These changes affected teams across the business, ultimately resulting in a reduction in staff by 24 either through redundancies or not replacing leavers. The Company applied a "last in first out" selection criteria as it had done in the past.

On the 21st of February 2025, solicitors instructed by the Complainant at that time wrote to the Respondent calling on the latter to admit liability for unfair dismissal and threatening proceedings. The present claims were initiated by way of Workplace Relations Complaint Form which was received by the W.R.C. on the 4th of April 2025. The Form was prepared on the Complainant’s behalf by the same firm of solicitors then representing the Complainant.

As regards the Complaint under the Payment of Wages Act 1991, the endorsement on the Complaint Form stated as follows:

“Did not receive bonus for 2024. The Complainant reserves the right to update particulars up to and including the hearing date.”

As regards the claim for Unfair Dismissal, the endorsement stated as follows:

“Our client was informed on 14th October 2024 that his role was at risk of redundancy. The Company informed our client during a meeting on the 15th of October 2024 that “the business has been through a restructure and we did say we were reviewing the service area. We have been looking at service activity, taking the Maxol rollout into consideration. As a result, we are reducing the field service team by two – 1 in Dublin 1 in Cork / Kerry. The selection process that I communicated with you was last in first out. The purpose of this meeting it so to confirm that your role is at risk of redundancy, and we are kicking off a consultation process. We want to see if we can avoid redundancy or find suitable alternatives.” Our client stated that “How are you going to defend last in the door and no work?” to which the Company responded “There 100% is a reduction in terms of service call activity. You may not see it, but it is factual that we are below our call levels. That is the exercise that has been on going. The rest of the business has been restructured. We set service aside to do a further analysis and complete the Maxol rollout, there are less calls coming in so there is less work to be done. I appreciate you may not see it in your area but at a national level we are down calls. So, we have a very good rationale.”

This is simply not the case, our client instructs that the Company is hiring contractors to go to the service stations close to him and to sites located beside where our client resides in Dublin. We say that this was not a case of a genuine redundancy, and our client is now unemployed employment as a result of a sham redundancy process. It is clear that the Company wanted to terminate our client’s employment and conveniently chose the selection criteria of last in first out as our client, you say was last in. It is important to note that a new team leader Mr. Owen McMahon started in February 2024. Mr. McMahon invited our client to a meeting in Headquarters on the 9th May 2024 our client was unaware of what this meeting was in relation to. Mr. McMahon spoke to our client about his hours particularly his starting and finishing times. Mr. McMahon asked our client why he started his shift at 5:30am on 1st May 2024. Our client informed Mr. McMahon that he had to complete a job in the Butlers store on Wicklow Street. Mr. McMahon interrupted our client and raised his voice. Our client responded by asking if he should get scared by this and then the meeting suddenly came to an end. Our client was shocked by this encounter and immediately informed you and Ms. Kathryn Costello by email of the encounter. Mr. McMahon subsequently raised a complaint regarding our client. An internal investigation was carried out as a result which concluded by our client being issued a verbal written warning on 27th May 2024. It is clear from the minutes of the meetings and correspondence which issued as a result that the Company wanted our client out of the Company. Our client knows how busy his workload was and knows that the work is still ongoing in his absence and therefore this is not a genuine redundancy situation. It should also be noted that if the Company were not satisfied were our client’s performance they should have instigated a performance improvement plan and not created a sham redundancy situation. The Complainant reserves the right to update particulars up to and including the hearing date.”

In addition to the foregoing submission, two further written submissions were delivered by the Complainant and at the hearing the Complainant made oral submissions and gave evidence on affirmation. 

Applicable Statutory Provisions

The following provisions of the Unfair Dismissals Acts 1977-2015 (as amended) (“the UDA”) are of relevance:

Section 6 subsection (1) of the (“the UDA”) provides as follows:

“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.”

Subsection 4 where relevant to the present case, provides as follows:

“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”

Subsection 3 provides:

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

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

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

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

Subsection 6 places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

“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.”

Subsection 7 provides where relevant, as follows:

“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…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…”

In the present case, dismissal was not in dispute nor was the date of dismissal. The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal. In this case the Respondent relied on Section 6 (4) (c) - that the Complainant was dismissed on the basis of redundancy.

Section 7 (2) of the Redundancy Payments Act 1969 (as amended) defines redundancy as occurring in any of the following situations:

“(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”

In this case the Respondent relied on paragraph (c) as the basis of the redundancy.

Analysis and Findings

The Complainant represented himself and gave evidence on affirmation. He was provided with the opportunity to challenge the evidence given by the Respondent’s witnesses and to make oral submissions. The Respondent called two witnesses, Ms. Catherine Costello, Business Transformation and Technology Director and Ms. Liz Doyle, HR Manager, who gave their evidence on affirmation. What follows represents an analysis of the reasoning behind this decision by reference to the relevant evidence. While all of the evidence and submissions have been fully considered this decision does not purport to be a transcript of the evidence.

The Payment of Wages Claim

The Complainant did not advance any further grounds for the payment of a bonus beyond those contained in the Complaint Form. Based on the terms of the Complainant’s contract, I am satisfied that he had no entitlement to the payment of a bonus and this claim is not well-founded.

The Unfair Dismissal Claim

In his submissions and evidence, the Complainant alleged that his dismissal was unfair on a number of grounds which can be summarised as follows:

1. That a genuine redundancy situation did not exist. There were several components to this ground as discussed below.
2. That the Complainant was unfairly selected for redundancy.
3. That the Complainant’s dismissal was not caused wholly or mainly by redundancy and what purported to be a redundancy was instead a device to remove the Complainant from the company based on events which occurred before the redundancy process was initiated.
4. That the officers of the Respondent who conducted the redundancy process leading to the Complainant’s dismissal had a bias or prejudice against the Complainant arising from events which occurred before the redundancy process was initiated.
5. In all of the circumstances the Complainant contended that the redundancy could not have been fair. Moreover, the loss of his job and remuneration left the Complainant unable to pay his rent and he became homeless, which gave rise to a vicious cycle where he was unable to afford a place to live without a job, and was and remains unable to secure employment without a permanent address.

In most cases involving a challenge, by way of an unfair dismissal claim, to a redundancy dismissal the process of assessing the merits of such a claim involves an examination of one or more or all, of the following issues:

-        Whether a genuine redundancy situation existed;

-        Whether the dismissal resulted wholly or mainly from that dismissal;

-        Whether the Complainant was fairly selected for redundancy;

-        Whether in all of the circumstances the conduct (by act or omission) of the employer in relation to the dismissal was reasonable.

In the present case, the Complainant’s challenge touches on all of the foregoing issues which, whilst they overlap to a certain extent, are discussed separately under the categories identified above.

Whether a Genuine Redundancy Situation Existed

The Respondent contended that a genuine redundancy arose as a direct result of an 18% decline in service call activity from 2023. This led to a review of the business, and a decision was taken to reduce the total number of jobs by 20 and the Respondent initially set about implementing redundancies in departments of its business other than the Services Department where the Complainant was employed. That Department was reviewed later that year in August 2024, and the outcome of this review was a decision to reduce the number of Field Service Engineers from the existing complement of 18 down to 16. This involved the redundancy of one position in Cork and the Complainant’s position which was based in the Dublin/Leinster region.

The Complainant alleged that to his own knowledge there was plenty of work available for the Field Service Engineers such that there was absolutely no need for a reduction in the workforce. Associated with this argument was the Complainant’s allegation that work which should have been allocated to the Complainant was instead assigned to contractors who effectively absorbed his work.

The first argument seeks to establish that it made no sense to make the Complainant’s position redundant when, to his actual knowledge, there was “plenty of work” available in his region to keep him employed. Despite this assertion however, the Complainant was not in a position to challenge the evidence given on affirmation by Ms. Costello, that the reduction in customer activity had in fact occurred. This leaves a situation where the Complainant is in effect challenging the soundness of the reasoning behind the decision by effectively asserting that redundancies were not necessary in his opinion. 

The second limb of the Complainant’s argument was to the effect that his work or at least work that he was willing and able to do, was being allocated to contractors. He relied on documentation which he introduced in evidence covering a certain period immediately before the termination of his employment which, he alleged, proved that this process was in train at that time. The Respondent took issue with the accuracy of the documentation relied upon in this regard which, it was contended, only covered the period during the redundancy consultation process with the Complainant when he was not actually working. The Complainant contended that he did not include evidence covering other periods because he wanted to avoid submitted too much documentation. The Respondent also made the point that the quantity of work allocated to contractors did not in fact increase after the redundancy. The Respondent further clarified (and the Complainant did not contest) that the use of contractors on an ad hoc basis to provide  “supplementary cover” was more cost-effective than deploying staff service engineers, since the former were paid a flat fee rather than an hourly rate and they bore their own operating expenses whereas the hourly rate, expenses and running costs of the latter were born by the Respondent.

A further issue raised by the Complainant was the fact that other Field Service Engineers were hired after his employment was terminated. The Respondent’s Ms. Doyle gave evidence on affirmation that only two vacancies for Field Service Engineers arose after the Complainant’s employment was terminated. Both vacancies arose following the resignation of the relevant incumbents of the positions that became vacant. The Complainant did not contest this evidence, nor did he contest the Respondent’s assertion that the total number of Field Services Engineers employed by the Respondent after the Complainant’s termination was and still remains at 16.  

As regards the wisdom or otherwise of the Respondent’s decision to reduce the number of employees, an employer has an inherent right to run its business as it sees fit. In the present case a strategic decision was made by the Respondent, in response to a reduction in service call activity, to cut its costs by reducing the number of employees.  The fact that an employee affected by that decision holds the opinion that it was unnecessary or wrong cannot by itself disprove the existence of a genuine redundancy.

As far as the use of contractors is concerned, I find that the Complainant has not adduced evidence to establish that contractors absorbed his work as alleged. Moreover, even if that were the case, the fact that the use of contractors is more cost-effective than deploying staff service engineers remains consistent with the redundancy situation relied on by the Respondent, that is to say that it was proceeding with fewer employees. As discussed further on in this decision, it is also noteworthy that the Complainant did not raise the issue of the use of contractors at the consultation meetings. 

The allegation that the Respondent hired more Field Service Engineers must be placed in the context of the factual evidence which was not controverted, that the vacancies which were filled after the termination of the Complainant’s employment arose from resignations and thus it is not the case that the Complainant was replaced as the total complement of Field Service Engineers remained at 16.

For the foregoing reasons I find the Respondent has established a genuine redundancy situation and the Complainant’s arguments to the contrary do not succeed.

Unfair Selection

The Complainant alleged that other identified members of his department with shorter service than his own should have been selected for redundancy. His skill set would have enabled him to do their work, but the reverse was not the case. The Complainant accepted in cross examination that he did not provide any of this detail in the consultation meetings. The Respondent accepted that these identified individuals had shorter service than the Complainant. However, they were not Field Service Engineers but installation technicians who were paid 32% less than the Complainant.   The redundancy of either of their positions would not have generated a sufficient cost-saving for the Respondent. The Respondent clarified (and the Complainant did not contest) that out of the entire team of Field Service Engineer’s, the Complainant had the shortest service, and he was selected solely and exclusively based on the Last-in-First-Out criterion, which said criterion was used in previous redundancies implemented by the Respondent.

The Concept of unfair selection is governed by Section 6 (3) of the UDA. The application of that provision involves a comparative exercise, the purpose of which is to identify any situation whereby: 

“the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed”

Ms. Costello in her evidence stated that the identified employees were not Field Service Engineers but installation technicians who did not have the skills which the Complainant possessed and were paid at a lower rate. I am satisfied that the comparator workers identified by the Complainant were not engaged in similar employment, and thus the comparison with those workers does not establish unfair selection. I find that the redundancy proposals affected Field Service Engineers of whom the Complainant was one and that his selection for redundancy from this group of workers was in accordance with the selection criterion being that of Last-In-First-Out, which said criterion is well recognised as objective and moreover had been used previously as the selection criterion in previous redundancies implemented by the Respondent. In such circumstances I find that there is no evidence to support an allegation of unfair selection for redundancy.

Whether the Dismissal Resulted Wholly or Mainly from Redundancy

The Complainant identified two issues which, he contended, demonstrated that his dismissal arose from the Respondent’s antipathy towards him rather than having arisen from redundancy.

The Complainant gave evidence that he raised concerns internally in November 2023that certain coffee installations on which the Respondent’s Field Service Engineers worked, were not properly certified in accordance with applicable legislation. 

Ms. Costello was the decision-maker in relation to the decision to terminate the Complainant’s employment. In her evidence she stated that when she was conducting the redundancy consultation meetings with the Complainant, she was unaware that he had ever raised any of the issues to which he referred in his evidence and thus they could not have played any role in her decision to make the Complainant’s role redundant. These issues were never raised by the Complainant during the consultation process. The Respondent questioned the relevance of this line of evidence but without prejudice to that position, the Respondent contended that none of the installations identified by the Complainant in his evidence were owned by the Respondent and were instead the responsibility of their respective individual owners. The Complainant insisted that this was not the case and that the Respondent retained a degree of responsibility where an installation was not compliant regardless of whether the Respondent owed that installation. The Complainant accepted in cross examination that he did not raise this issue at any time during the consultation process. The Complainant advanced the opinion that the fact that he raised a safety issue, and was the only one to do so, was a factor in part or contributed to the decision to dismiss him. He also pointed out that when he raised this issue in his first submissions to the present adjudication process, his access to the information regarding the certification status of the installations was cut off.

The Complainant did not raise this issue during the consultation meetings or at any time before his dismissal. The restriction of access to the information regarding the status of the installations after the issue was raised in the Complainant’s submission clearly occurred after the Complainant’s employment had ended at which time the Complainant was not entitled to access that information in any event. For the avoidance of doubt, it must be clearly stated that no finding is necessary or is made regarding the factual accuracy or otherwise of the Complainant’s allegations regarding the status of the installations. The relevance of the allegations is restricted to the question as to whether they constitute sufficient evidence to establish that the dismissal did not result wholly or mainly from redundancy. The issue rests on the credibility of the evidence adduced as to a direct link between it and the decision to terminate the Complainant’s employment. I find that the failure to raise the issues at the appropriate time, that is to say in the consultation process leading to the decision to dismiss or even by way of an appeal against that decision – which the Complainant did not pursue – fundamentally undermines the credibility of the Complainant’s evidence such that it is at best, an opinion advanced by the Complainant but one which is unsupported by evidence.

The Complainant gave evidence as to the circumstances leading to the issuance of a verbal warning against him on the 27th of May 2024 which he contended “contributed to his dismissal”. It is common case that the Complainant received a verbal warning following an internal disciplinary process which was conducted by Ms. Costello. The Complainant was afforded an appeal against this warning which he invoked. The appeal comprised a review of the disciplinary material by an independent staff member who affirmed the verbal warning sanction on the 6th of June 2024.

The Complainant identified several procedural flaws in the disciplinary process giving rise to the verbal warning in May 2024 and the affirmation of that warning on Appeal in June 2024. He alleged that the entire process was inherently unfair and lacked impartiality and that it placed him under a lot of stress. In her evidence Ms. Costello said that the Complainant had been afforded due process including an appeal against the sanction. The sanction itself, she said, was a light sanction. Ms. Costello denied that there was any connection whatsoever as between the disciplinary sanction and her decision to terminate the Complainant’s employment. That decision was based on the need to reduce head count and by the application of the Last-In-First-Out criterion and no other criterion.

I note that reference was made to this issue by the Complainant in both consultation meetings and the Complainant provided further detail in his evidence as to the shortcomings of the disciplinary process and the way the experience affected his morale at the time of the events and during the consultation process prior to the termination of his employment. Essentially the case made was that the disciplinary issue and the way in which it was handled showed a prejudice on behalf of the Respondent against the Complainant which was the real motivation behind the purported redundancy. In essence therefore the allegation was that the dismissal was personal but was disguised as a redundancy and thus the dismissal was not caused wholly or mainly by redundancy but by a desire to remove the Complainant from his position. The Respondent’s decision-maker, Ms. Costello, both in the consultation meetings and in her evidence, consistently denied that the redundancy of the Complainant’s position was in any way related to any previous disciplinary issue

The theory that the Complainant’s disciplinary issue and/or any perceived shortcomings by the Respondent as to in his performance caused or contributed to the decision to terminate his employment must be assessed in the light of the established facts:

Firstly: the Complainant had the shortest service of any of the Field Service Engineers. He was so advised in the consultation meetings, and he did not dispute this fact in his evidence or submissions.

Secondly the criterion of “last in - first out” was used by the Respondent in relation to this and other redundancies which were implemented - both in 2024 and on previous occasions - in relation to all redundancies. This fact was not controverted by the Complainant.

Thirdly there is no evidence that the disciplinary record of the Complainant or any other employee made redundant - in 2024 or previously - was ever used as a selection criterion.

If any of the above facts were not established, i.e. if the Complainant did not meet the criterion but had been dismissed nonetheless; if a different criterion (such as a disciplinary record) had been used in the Complainant’s case  or if his had been the only dismissal arising from the cost reduction review, then there would be some merit in a further examination of the allegation. However given the facts as established I am driven to the conclusion that even if the disciplinary process and/or the sanction which emanated from it was/were as flawed and/or unjustified  as alleged by the Complainant (and no such finding is necessary or is made), there is no evidence that the process or the warning which it generated played any role in the decision to dismiss. 

I am satisfied that the Respondent has, on the balance of probability, adduced sufficient evidence to establish that the Complainant’s dismissal resulted wholly or mainly from redundancy and the Complainant has not adduced sufficient credible grounds to rebut this evidence.

Procedures and Reasonableness of the Respondent’s Conduct

Section 6 Section (7) of the UDA empowers an adjudicator to enquire into the “reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”. It is well-established that this provision, in the context of a challenge to a redundancy-based dismissal involves an examination of the procedures adopted which preceded the dismissal. In the present case it is accepted that two separate consultation meetings occurred. Minutes of these meetings were available.  Ms. Costello in her evidence clarified that the use of the phrase “100%” in the First Consultation meeting was a reference to the absolute certainty of the need for redundancies rather than a reference to percentage reduction in customer activity. This clarification aside, the Complainant accepted that the minutes were a fair summary of the matters discussed.

The minutes reflect that the Complainant was offered and declined representation. The minutes also reflect - and the Complainant in cross examination accepted - that he did not engage in any substantive way in the consultation meetings. Specifically, he did not make any proposals as to ways in which the redundancy of his position could be avoided. The minutes of the first consultation meeting held on the 15th of October 2024 reflect that the Complainant was advised of the availability of the following roles:

- Area Sales Manager – Dublin South

- Regional Sales Manager

- Service Request Co-Ordinator

- Factory Maintenance Technician – mechanical

- Factory Maintenance Technician – Electrical

- General operative coffee production

- Barista Trainer – Northwest

Later in that meeting the Complainant is recorded as saying, “I am not going to apply

for those roles, don’t bother.”

Aside from the above roles, a vacancy for a Field Services Engineer arose after the consultation process had concluded but before the Complainant’s termination date. This vacancy arose due to the resignation of another Field Service Engineer who was based in Cork. The Complainant accepted in evidence that he was notified of this role by the Respondent. He said that he did not consider the role. He did not apply. The job was based in Corkwhich would have required a move to Cork but there were no details as to relocation expenses. He had been made redundant by the Respondent before, and he was not going to go through that again. The Complainant did not make any enquiries about the role.

The Complainant having raised some doubt as to the other appointments made to the position of Field Services Engineer subsequent to the Complainants cessation date, Ms. Doyle was given time to check the records and, having done so she said on affirmation that only three positions for Field Service Engineer were advertised by the Respondent, the first being the one that arose in Cork which was advertised in November 2024, the next in April 2025 and the third in June 2025. The vacancies arose from resignations which in the case of those which occurred in April and June 2025, could not have been anticipated when the Complainant was made redundant in November 2024. The Complainant accepted this evidence, and he also acknowledged that he was aware that the April 2025 position had become vacant because he applied for that position in response to the advertisement. He said that he did so by sending an application to a named third-party agency. He did not receive an acknowledgement from that agency other than an automated response to indicate that the application had been received. He did not receive an acknowledgement of receipt of that application from the Respondent, and he heard nothing further from the Respondent or the agency to which he had sent the application. Ms. Costello said on affirmation that the Respondent did not receive this application.

Even if the Respondent did receive the application and failed to respond (and I make no finding one way or another on this issue) the uncontroverted evidence was that the vacancy arose some months after the dismissal decision was made and it did so because of the resignation of a serving Field Service Engineer.  Thus, the total number of Field Service Engineers after the filling of the vacancy which arose in April 2025 remained the same as it had been following and as a result of the termination of the Complainant’s employment. It follows that the appointment made to fill the vacancy in April 2025 does not raise any suspicion of a surreptitious attempt to remove the Complainant unlawfully by means of a sham redundancy and having done so, to back-fill his position as soon as the ‘dust had settled’ following his departure.

I find that the Respondent applied fair and reasonable procedures in relation to the procedures followed. Two consultation meeting were convened, and the Complainant was offered representation. Alternative positions were presented to him, and his own views were sought in relation to any proposals he wished to make to avoid redundancy. The basis of the redundancy and the selection criteria were explained. Following the decision an appeal was offered. By contrast, the Complainant’s engagement was very limited. He did not engage with any of the alternative proposals put to him and made none himself. The principal issue he raised related to the disciplinary issue which arose in May of 2024. Aside from this issue he did mention that there was plenty of work and questioned the need for cost-cutting, however he did not make any proposal regarding how costs could be saved while still avoiding redundancy. In his evidence and submissions, the Complainant identified other employees who, he said could have been made redundant and he also discussed the work allocated to contractors. These issues were not raised in the consultation meetings and for this reason no opportunity to discuss them arose. Moreover, when they were presented in detail by the Complainant, belatedly at the hearing, the Respondent in evidence and submissions, rebutted the criticisms in a manner which I found plausible and reasonable.

I am satisfied that conduct of the Respondent’s in relation to the dismissal was reasonable. 

Conclusion 

Whilst I have assessed and made individual findings in relation to the issues raised by the Complainant separately, I have also considered whether, taking all of the issues raised together, sufficient grounds exist to undermine the fairness of the dismissal, and my conclusion is that such is not the case.

In all of the circumstances I am satisfied on the balance of probability that the Respondent has established that the Complainant’s dismissal resulted wholly or mainly from redundancy, that the basis of that redundancy was genuine, that the Complainant was fairly selected for redundancy and that the conduct of the Respondent in relation to the dismissal was reasonable. Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00070573-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977 - The Complainant was not unfairly dismissed.

CA-00070573-002 = Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - The Complaint is not well-founded

Unfair Dismissal –– Unfair Dismissals Acts 1977 – 2015 - Sections 6 (1), 6 (3), 6 (4), 6 (6) and 6 (7) – Redundancy payments Act 1969 – Section 7 (2) – whether Genuine Redundancy – Whether dismissal resulted “wholly or mainly” from redundancy -   Unfair Selection