Complainant

Respondent

Parties

Nora Martin

Genesis Psychotherapy & Family Therapy Service Limited

Representatives

Bruce St John Blake & Co / Kiwana Ennis BL

 Mackey O'Sullivan Binchy/ Ray Ryan BL

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-00001139-001

27/11/2015

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00001139-002

27/11/2015

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

CA-00001139-003

27/11/2015

This Complaint was acknowledged by the Commission on the 9th of December 2015, stating that it was received on the 27th of November 2015, which alleged that the Complainant was unfairly dismissed and was seeking relief under the Unfair Dismissal Act 1977. The Commission looked for further details as set out in the Workplace Relations Form.

The Complainant’s employment commenced on the 12th of January 2009 and ended on the 31st of May 2015.

In the termination letter dated 13th of July 2015, the letter stated that:

“following previous communications in regard to our restructuring and role abolitions, please find enclosed your P45.

Strictly: ( refers to Strictly Come Dancing Fund Raiser)

 In relation to the “Strictly” matter our legal counsel has advised that it is reportable under the Criminal Justice (Theft & Fraud Offences) Act 2001, Section 10, and the Criminal Justice Act 2011 and, in particular Sections 19 and 23. The boar will take appropriate action based on this advice. The result of this as mentioned before will be outside the control of the present Board and the consequences will be whatever they will be.

For and on behalf of the Board.

Damian Scattergood

Chairman

Since the passage of time one board member who was the Finance Director and who oversaw a restructuring of the service, along with the then Chairman, has died. The Chairman Mr. Damian Scattergood was unable to attend due to a serious illness.  It is argued by the Respondent that this places the Respondent at a very significant disadvantage when attempting to defend the claim.

On the 22nd of July 2015 the Complainant’s Solicitor replies to the termination letter. The letter details the shock of their client about the manner of the dismissal. The letter of dismissal is alleged to be unlawful and contains no termination date or reason for dismissal. The true motivation for the dismissal relates to an allegation of fraud concerning a Strictly Come Dancing charity fund raiser which was entirely untrue and false. It is alleged that Mr. Trehy held an animus against the Complainant since he joined the board in January 2015.

On the 3rd of May 2016 in correspondence to the Commission Mr. Richard Trehy Finance Director of Genesis now deceased states that Genesis, the Respondent had submitted a complaint to the Fraud Squad under the Criminal Justice Act 2011.

The Complainant asserts that the allegation concerning fraud was made without any merit and was entirely vexatious. The facts of the fraud claim are based on the Complainant holding funds at her home, raised at a Charity Event, and in fact asked to do so by the board, until the money could be lodged. The Complainant asserts that in fact she was reticent to doing so for safety and security reasons.  These facts were known to the board and ignored by the Finance Director and Chair. It is alleged that the fraud claim was contrived to intimidate and ensure that no claim against the Charity would be made when she was unfairly dismissed. The so-called restructuring was a sham and is being used as false basis to justify the termination.

On the 28th of May 2016 Mr. Trehy writes to the Commission and states he has concerns that there are several complaints being pursued by the Complainant and that there may be inappropriate overlapping.

The Respondent on the 3rd of June 2016 wrote seeking a postponement of the Unfair Dismissal Hearing arising from:

1.       The Criminal Complaint

2.       A Civil Action in the Courts for defamation

 On the 29th of June the Respondent also sought a postponement of a hearing scheduled for the 20th of July 2016. This was granted.

Submissions lodged on behalf of the Respondent on the 15th of November 2016 sought a postponement of the hearing and citing several High Court precedents such as Ciaran Culkin v Sligo County Council [2015] 26 E.L.R. and to support their application for a postponement, as in this case there is a considerable degree of overlap in the Civil Court Action and the Unfair Dismissal complaint. It was argued that the matters were intimately linked and should not proceed side by side.

The preliminary matters seeking a postponement were heard on the 2nd of November 2016 and adjourned to allow both sides to make further written submissions.

On the 25th of May 2017 the Adjudicator determined that the statutory claims  cannot be dealt with until the High Court has dealt with matters before the court.

On the 29th of January 2024 the Complainant’s Solicitor wrote to the Commission to state that the High Court decisions relied upon by the Respondent: Cunningham v Intel (Ireland) Ltd [2013] IEHC 207 and Culkin v Sligo County Council IEHC  46 had been overturned by the Court of Appeal in Culkin v Sligo County Council [2017] IECA 104. The Court of Appeal held that a Complainant was not prevented from pursuing a personal injuries action in the High Court in tandem with a claim for discrimination and harassment before the equality tribunal even where both cases were based on the same underlying set of facts.

On the 23rd of February 2024 the Commission wrote to the Complainant and stated that the matter would be relisted before a new Adjudicator as the original Adjudicator had left the WRC. The Complainant was asked to provide an update for the hearing.

An updated submission was received from the Complainant on the 26th of April 2024.

On the 18th of June 2024 the Respondent wrote to the Commission to object to the relisting of the complaints.

The Respondent stated that there was a highly exceptional and particular background to the history of these claims. The Respondent stated that in their view the position arising was unprecedented. It would be a breach of fair procedures and natural justice if their side was not heard before deciding that the matter should be relisted to be heard.

The Respondent stated that the following cannot be disputed:

1.       In a decision dated 25th May 2017, an Adjudication Officer of the WRC acceded to the Respondent’s application that the claims be stayed and await the conclusion of High Court Proceedings.

2.       The Complainant lodged an appeal in respect of the same to the Labour Court (on or about 3rd July 2017)

3.       The Complainant subsequently withdrew her appeal (in or about April 2020). The Complainant did not make any contact at all with the WRC for a period (approximately) of more than six and a half years-from early 2017 until January 2024.

The Respondent is clearly prejudiced as a result of the WRC now purporting to proceed to hear the claims.

It is erroneous to proceed on the basis that the Court of Appeal Judgement in Culkin v Sligo County Council [2017] IECA 104 is dispositive of what should happen in this case. That judgement was delivered on the 29th of March 2017. The Complainant has not explained why there has been total inactivity and silence from her in trying to revivify the WRC claims while the High Court proceedings remain extant.

The Commission wrote to the Respondent and stated that the matter would be adjourned for a period of 6 months to allow the High Court case to run its course and then review the status of the case in 6 months’ time. Two hearing dates for the 8th of July and 9th July 2024 were cancelled.

The case was reassigned due to promotion within the service in early 2025, to another Adjudicator who now has seisin of the case.

The Complainant had a period of sick leave in March 2015 arising from a serious illness. This was followed by two weeks of annual leave.

The following allegations are made against Mr Trehy who passed away in April 2023.

It is alleged that on returning to work the Complainant was asked to meet Mr. Trehy Finance Director who recently had joined the board. According to the Complainant she had no prior notice of the meeting, she found the conduct of Mr Trehy hostile and intimidating. The conversation was about two key matters:

·       The revaluation of the Respondent’s building in 2012

·       The treatment of monies raised by a Strictly Come Dancing fundraiser in October 2013 ( “the Strictly Matter”).

It is alleged that Mr Trehy commented that he thought that revaluation was a bit dodgy.

The Strictly matter concerned cash raised from a fundraising event in October 2013, which was not lodged into the Respondent’s bank account until the 11th of February 2014. There was a concern that if lodged it would have affected funding.  At the request and approval of the Board, the cash was stored in the Complainant’s house in a safety box, the key for which was kept by another member of staff. The amount was fully disclosed in the 2013 management accounts.  The Chair at that time Sister Regina wrote to the auditors to explain that fundraising by the Charity had been a big learning curve.

On the 23rd of April 2015 the Complainant was asked to attend a meeting attended by 3 Board members Ms Patrica Dillon SC, the Chair Mr Scattergood and Mr Trehy. Allegations of bullying were made against the Complainant. Those complaints were allegedly made by another employee who was also a Board member. The Complainant saw this meeting as an ambush. She was being asked to comment in respect to a “complaint” of bullying that had not been formally made and without receiving any prior notice of the meeting or the right to be accompanied at the meeting.

The Complainant around the same time was informed that a restructuring of the organisation has commenced; however, the Complainant was never involved in that process or consulted at any time.

It is alleged that at a meeting with staff on the 20th of May 2015 while the Complainant was still on stress related leave, Mr Trehy and Mr Scattergood informed staff of a restructuring process which would result in the Complainant’s termination.

The restructuring abolished the Complainant’s role and the Assistant Manager role and created two new roles, a head of counselling and a business administration role who would report directly into the board and to a specified board member.

The Complainant contends that in fact no redundancy arose as these roles were being cloaked in different names yet continued with the work she and the assistant manager carried out

By email of the 19th of June 2015 the Complainant sought the details of the Senior Therapist post, and it is alleged none were provided.

A letter of termination was issued on the 13th of July 2025 as detailed.

The Respondent made a complaint to the Garda Bureau of Fraud Investigation it is alleged by letter of the 20th of October 2015. In this complaint the Strictly matter was referred to and it is alleged made false statements that the Complainant and not a Board member was insistent that the monies be held back and took the funds to her house. It is alleged that statement was knowingly incorrect.

It is alleged that the conduct of the Respondent was oppressive and unscrupulous and deliberately set out to break the Complainant’s spirit so that she would not take a claim against them or to use against her if she did.

The Complainant’s role was readvertised under a different title but was in effect the same role.

The Complainant did not receive pay after the 31st of May 2015. In circumstances where the Complainant’s termination became apparent by the letter of the 13th of July 2015 and where she was entitled to 4 weeks’ notice under statute, she is entitled to be paid for June, July and the first 2 weeks of August 2015.

The termination of the Complainant’s employment took place in accordance with terms of the contract agreed between the employee and the Respondent.

The cessation of the contract occurred for a substantial reason that was entirely impersonal.

Evidence was given by the current Chair concerning the charitable nature of the organisation’s work in providing a community-based counselling service. In fact, the current Chair was asked to join the board as it was under threat of imploding arising from a severe funding shortage. That very reason of a shortfall in funding was provided in the Complainant’s contract as a substantial reason to terminate her contract.

The Respondent opened a detailed report that detailed a decline in funding between 2009 to 2015 amounting to a cumulative shortfall of 33.64%. Also, the hours delivered in 2015 was 1776 hours and arising from the new model that had risen to 3774 hours in 2023.

The Complainant’s contention that there was no cut in funding cannot be maintained.

It is also the case that the Complainant was asked to compete for the new role of Senior Therapist and failed to do so. There was a sound reason for the restructuring and the redundancy.

The Respondent contends that if the tribunal is not persuaded that a genuine redundancy did exist there were substantial reasons for ending the Complainant’s employment.

The Respondent has cited the UK textbook Harvey on Industrial Relations and Employment Law (“Harvey), Section D1, Paragraph 1654 where it states:

“Prima facie, dismissal for redundancy is fair. Redundancy in this context has the meaning assigned to it. This is a very technical concept, and there are very circumstances where a person will not qualify under the statutory definition even though they are dismissed because of a business reorganisation and through no fault of their own. In these cases the employer cannot justify the dismissal by reason of redundancy. However, it may be able to establish that the dismissal is nevertheless fair under the category of some other substantial reason. Note that if the employer is seeking to rely on either redundancy or some other substantial reason he would be wise to make sure that both grounds are specifically raised…”

It is argued that the Respondent lawfully restructured its model of operating and that the decision to dismiss the Complainant was based on substantial grounds and was fair and lawful.

The Respondent relies on the provisions of 7(2) (b) of the Redundancy Payments Act 1967 as amended to justify the termination:

(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

The managerial role fulfilled by the Complainant was no longer required.

If the tribunal were not minded to agree that a redundancy was properly implemented; the Respondent asked that the tribunal note that Section 6 (6) of the Unfair Dismissals Act 1977 as amended specifically provides for the following:

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.

On the 10th of June 2015 the Chair Mr Damian Scattergood wrote to the Complainant to inform her that due to a drop in funding of the order of 27% a restructuring of the Charity was required. That meant her role and that of assistant manager would be abolished.  A new role of senior therapist was being created, and she could apply for that role.

The last paragraph of the letter stated:

“In this circumstance the Board will not progress the other serious matters which may amount to Gross Misconduct. However, if there is a breach of the Criminal Justice Act 2011 then the matter is outside the control of the present Board and the consequences will be whatever they will be.”

In the termination letter dated 13th of July 2015, the letter stated that:

“following previous communications in regard to our restructuring and role abolitions, please find enclosed your P45.

Strictly: ( refers to Strictly Come Dancing Fund Raiser)

 In relation to the “Strictly” matter our legal counsel has advised that it is reportable under the Criminal Justice (Theft & Fraud Offences) Act 2001, Section 10, and the Criminal Justice Act 2011 and, in particular Sections 19 and 23. The boar will take appropriate action based on this advice. The result of this as mentioned before will be outside the control of the present Board and the consequences will be whatever they will be.

For and on behalf of the Board.

Damian Scattergood

              Chairman

The Respondent called 2 witnesses the current business administrator who gave evidence about the financial challenges faced by the organisation and how the current model is very effective both from a client experience and how the cost per session had improved. He was not party to the decisions about the Complainant.

The current Chair did attend to give evidence; although, she was a board member at the time, she was not directly involved in the decision to end the Complainant’s employment, although the board would have approved the restructuring plan. Her evidence was about the need to restructure the organisation and that funding shortfalls called for a new model. She could not remember with clarity where it was stated she attended and met the Complainant along with 2 other board members and where she asked Mr Trehy to stop putting hostile questions to the Complainant.

I am confronted with a very difficult decision concerning the application to find against the Complainant arising from the death of Mr Trehy and the illness of Mr Scattergood based on the requirement that a hearing must be fair to both parties. This is not a case about failure to prosecute her case but about an omission to proactively rectify a procedural ruling that stopped the Complainant from prosecuting her case.

Since the Complainant didn’t cause the delay, I am asked to consider their failure to apply for a lifting of the stay that was given to the Respondent.

The Complainant’s counsel has stated that the Complainant has limited means and the cost of bringing a Judicial Review was prohibitive as her costs in appealing the ruling were unlikely to be recouped. In the circumstances of progressing a civil claim and a statutory right to pursue a Judicial Review was not financially possible. As the Civil matter is active the choice was to see how that evolved and then only when it became clear that the civil matter was unlikely to be resolved soon, the choice was to reapply to the Commission to reconsider their stay ruling. And in turn this was resisted by the Respondent. That action was the least financially onerous but still created a liability for legal costs as they are not recoverable under the statutory framework of the Workplace Commission.

The Respondent has argued that they are unfairly prejudiced; however, it is not clear why a key actor in the restructuring and the decision to end the Complainant’s employment and who has a health condition, why he could not give evidence even if that meant accommodating how best that could be achieved. Counsel for the Complainant has stated that the previous chair, the key decision maker in the dismissal, has not provided sufficient reason for not attending to give evidence. In this regard I refer to Tracey v McDowell [2016] IESC 44:

6.4 But it is most important that all concerned, be they parties or doctors, realise that the role of the court is different. The court is required to take into account the rights and interests of all parties. If a case has to be adjourned or a witness not called then that has the potential to affect the rights of other parties beyond the individual on whose health status a doctor may be required to report. A court is required to balance all of the rights involved. However, in so doing a court requires more information than is sometimes proffered to enable it to carry out that task properly.

6.6 Second it must also be acknowledged that there will be cases where it will be necessary to consider whether there are any measures which the court can adopt which meet both the reasonable health requirements of the individual under consideration but also the reasonable requirements of all parties for a timely resolution of the litigation. A witness who may not be able to come to court can have their evidence taken on commission. A party who might not yet be in a position to attend and give evidence at a trial might nonetheless be in a position to give instructions to their lawyers to allow for the orderly progress of the proceedings up to the point of trial. Part of the assessment which the court will have to make is as to whether there are any measures which can be adopted which will minimise interference with the orderly progress of the case. Again, there may be cases where that very fact will be decisive. In an urgent case it might be inappropriate to permit a 9-month adjournment to facilitate the attendance of an important witness but it might be appropriate to allow a short adjournment to allow the evidence of that witness to be taken on commission. Some procedural leeway may be allowed in getting a case on for trial because of a medical condition from which a party suffered but there might be a great deal of difference between a case where it was said that there could be no progress at all until an unspecified time in the future when the patient might recover and one where reasonable measures could be put in place to allow the court process to move along so that it would be ready to go to trial as soon as the party concerned had recovered.

6.7 All of this analysis is designed to show that a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might reasonably influence the court’s judgement.

On the plain reading of the documentary evidence presented to this hearing I must find that the Respondent’s key witness, the previous chair, has not provided sufficient reasons as detailed in his medical certificate for not attending and if necessary for that to be adapted if required so that his evidence could be heard.

I am being asked to dismiss the Complainant’s case based on delay and prejudice; however, that prejudice must be considered having regard to the actions of the Respondent and not solely to delay on the part of the Complainant who had limited financial resources to progress their case once a stay was placed on hearing of their complaint.

This is a case about the impersonal nature of the decision to make someone redundant or another substantial ground and the Respondent relies on section 6(6) of the 1977 Act that references the following as reasons for ending an employment contract:

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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Unfair Dismissal:

Redundancy

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. 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, it was initiated due a serious funding shortfall and that the Complainant failed to engage in the restructuring consultation process.

The onus is on the Employer to show that the decision that they took was reasonable. The documentary evidence opened to this tribunal and not questioned as hearsay, provides evidence that is far from impersonal. It refers to conduct that apparently relates to an allegation of bullying by another work colleague and to an allegation of fraud that has been passed onto the Gardaí for investigation. While a redundancy situation is likely to be required when funding is decreasing the organisation was creating two new roles and at face value that may mean a more efficient structure.

 While not at face value eliminating 2 roles and creating 2 new roles is not unfair, it does call for some engagement with the incumbents concerning their suitability or not for those roles. The Complainant stated she did ask for more information and that was not forthcoming. There is no evidence supporting any criminal wrongdoing. There is no case made out for bullying against the Complainant. Why these matters were communicated in the context of a restructuring would appear to show that they are matters relevant to the consideration to terminate the employment contract. It could be argued that they were referenced as the Complainant was absent from work and they were relevant having regard to the entire working relationship.

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 is stated that she was ambushed and asked to account for decisions made by the board about property valuations and Strictly Come Dancing Funding. It is stated that the redundancy situation was contrived. The evidence would appear to support the Respondent that the current model is a better one and was necessary allowing for the funding that they received.

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

While the reorganisation was required, the question arises about the impersonality test under redundancy and for the other substantial ground also relied upon how fair was the selection process.

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.

The Complainant was absent during the restructuring process; however, there is little evidence of constructive consultation with her.

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.

On the facts there is very little evidence of the employer doing any of these things as detailed in Cronin.

There is very little evidence that the Respondent had regard to the Complainant’s service and her experience as a qualified therapist.  The process depended solely on a vacancy 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.”

The question that I must ask having regard to the entire factual matrix of this case was the selection fair? I find that the evidence including the documentary evidence tends to show that the selection was not impersonal and was not fair.

A distinction needs to be made between the loss of a specific role and the selection of the incumbent for redundancy or termination for another substantial ground.

The onus is on the employer to demonstrate that they acted fairly and reasonably. The employer had the right to reorganise. However, the employer must also demonstrate that they acted reasonably in choosing this employee to be made redundant or to terminate. This is particularly so when they were also intending to recruit a senior therapist who would run the counselling service, and the Complainant was a very experienced therapist. While the Respondent stated that they informed the Complainant she could apply for that role a view must be formed on how genuine her chances of success for that role or any role was as the roles would report to specified board members. There was a clear backdrop of allegations about bullying and fraud.

 What is crucial is to assess whether the decision maker at the time of making the decision to end her employment, applied objective and fair criteria? There is a dearth of information concerning the criteria applied other than that the incumbent’s roles of manager of the centre would cease.

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 or dismissed her for another fair reason based on a substantial ground other than redundancy.

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 would be recruited and have a different reporting structure, it is not clear why the Complainant was not considered suitable for that new counselling role.

A decision to make an employee redundant must be impersonal; limiting the review to one role that can be applied for, against the backdrop of other personnel being recruited, where redeployment should at least be considered when the Complainant was a very experienced therapist, is not objective and fair, where the reasons for that decision are not clear. 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 based on the Complainant’s evidence and more importantly the correspondence sent to the Complainant about the restructuring her role and her letter of termination, I have concluded that the redundancy was not impersonal was strongly influenced by the Chair forming a view that the Complainant was not a good fit for the organisation. As it is not clear to this tribunal why the Chair could not give his evidence, it is not appropriate to fetter the Complainant’s case based on his nonattendance at this hearing.

Other Substantial Reason Justifying Dismissal:

The Unfair Dismissals Act 1977 does provide for the employer to show that there was another substantial reason justifying the dismissal and, in this case, it was the need to re-organise and that the roles of manager and assistant manager were no longer required. The substantial reason was supported by a detailed analysis in Appendix 6 of the Respondent’s submission which detailed the funding shortfall and the actual counselling hours delivered from about 2009 up to 2015. Post the restructuring that position was dramatically turned around and the financial position stabilised and the increase in counselling hours very significantly increased.

This is a case about the impersonal nature of the decision to make someone redundant and also the Respondent relies on section 6(6) of the 1977 Act that references the following as reasons for ending an employment contract:

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.

The Respondent relies on a UK authority to demonstrate when another substantial reason maybe be relied upon:

“Prima facie, dismissal for redundancy is fair. Redundancy in this context has the meaning assigned to it. This is a very technical concept, and there are very circumstances where a person will not qualify under the statutory definition even though they are dismissed because of a business reorganisation and through no fault of their own. In these cases the employer cannot justify the dismissal by reason of redundancy. However, it may be able to establish that the dismissal is nevertheless fair under the category of some other substantial reason. Note that if the employer is seeking to rely on either redundancy or some other substantial reason he would be wise to make sure that both grounds are specifically raised…”

I would concur that the Act does provide a ground which is more widely defined as other substantial reason; however, it rests with the employer to show that the other substantial reason that justifies the dismissal was fair.

However, section 6(7) of the Act 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

And section 6(1) states:

.—(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.

Having regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, I find that the dismissal was unfair arising from the conduct of the employer that I have determined to be egregious and unfair and this clearly encompasses the generality of another ground referred to as some other substantial ground.

Having regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, I find that the dismissal was unfair.

I have also had regard to the factual matrix of this case that purports that the dismissal was a redundancy which is as likely to turn on witness testimony and on the factual matrix such as financial data, selection criteria, organisation restructure proposals, relevant employee notification, minimum notice, written reason for the redundancy. The documented reasons for the redundancy or other substantial ground to justify the cessation, can be relied upon to show the dismissal was fair having regard to the finances of this body at the time of the decision and the reasonableness and fairness of the selection process adopted by the organisation. Those matters are less likely to be impacted by the passage of time and means the defendant is less likely to be prejudiced. It is also the case that the decision to dismiss based on redundancy or restructure is normally detailed in written communication when informing an employee who is at risk and the selection criteria to be applied, the process and reasons for a restructure are matter of fact and impersonal. This record in turn should be relied upon when justifying the cessation of employment fairly.

The delay to conclude this complaint arose based on the Respondent’s application to put a stay on the hearing of this matter until the civil matter was concluded. That case continues and is active.

The Complainant did appeal the Adjudication decision to the Labour Court and was withdrawn in 2020. The Court has no statutory role to override a preliminary ruling in an Unfair Dismissal Case.

This tribunal has no inherent jurisdiction. The relevant statutes do provide a power to dismiss for want of prosecution; however, when a tribunal places a stay on complaints to be heard, that cannot then be construed as delay and a failure to prosecute the complaint.

While the Court of appeal in Culkin clarified the law concerning the right to pursue a statutory claim in parallel to a civil case in the Courts in 2017, the Complainant sought to lift the stay by appealing to the Labour Court up until 2020. Any delay that arises to lift a stay in contrast to prosecuting a case arose at that point. An important matter in this case relates to the financial burden that another route would place on the Complainant such as a Judicial Review. The Complainant has limited means, and her income is highly variable.

A key consideration is prejudice arsing from the delay and the right for both parties to have a fair hearing. An Unfair Dismissal claim places a burden on the employer to document and detail why they made the decision to terminate the most senior manager in the organisation. While the current Chair stated that detail of the restructure was not discussed at the Board, it is difficult to accept that once the complaint was lodged with the Commission and the civil matter also commenced that the board would not have reviewed all the facts concerning this dismissal.

The justification for the dismissal is redundancy based on the need to restructure the organisation. That is the right of the Charity however the selection under the restructuring I have concluded, principally based on corroborating documentary evidence from the decision makers at that time, to be tainted by a personal animus. The conduct of the employer was not reasonable and failed to investigate fairly the allegations brought against the Complainant. The conduct of the employer was egregious and very damaging to the Complainant’s future career prospects and was orchestrated to push her out of the organisation.

The Respondent relies on redundancy or some other substantial ground to end the employment. There was no statutory redundancy payment made, and it is argued that does not negate the right to state that the role was redundant and the right person was selected for redundancy.  The right of payment does not negate the fact that a redundancy arose.

The Respondent also argues if the Redundancy was not deemed to be fair; the Employer can justify the dismissal based on another substantial ground justifying the dismissal. The charity was close to being insolvent.

The operating model required to be more efficient and cost effective. The overhead roles of manager and assistant manager were replaced by a head of counselling and a separate position of business manager. In turn that new structure gave renewed focus on improving the service for the client and maintained a strong focus on cost control. However, that other substantial ground must meet a test of fairness. The selection of the complainant was not fair. She also was a therapist. If she was deemed to have underperformed this should have been addressed.

 However, the cessation was linked to an allegation that she bullied another colleague that was never properly investigated and that she was the primary mover to hide Strictly Come Dancing funds when the documentation show that this was not so. These allegations were made to undermine the Complainant and essentially prejudiced any fair assessment of her suitability for the new counselling role. She was summarily dismissed despite her service without notice and given a p 45 dated the 31st of May 2015 when notified of her dismissal in July 2015.

The conduct of the employer was most egregious and having regard to 6(7) of the Act I deem the ground of restructuring as a separate substantial ground to redundancy not to be fair based on the conduct of the employer

I have given very careful consideration to the passage of time and the death of Mr Trehy the Director who played a key role in the restructuring. However, the decision to terminate the employment was made by the then Chair. It is not clear to this tribunal why he can’t give his evidence if necessary to be accommodated having regard to his medical condition.

The Unfair Dismissal’s Act places an onus on the Employer to demonstrate that the dismissal was fair or that the termination was a genuine redundancy subject to a caveat that this tribunal can have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal. An important consideration in this regard is whether the redundancy is impersonal. I have determined that the selection process was flawed and prejudiced and was not impersonal. That conclusion is based on the Complainant’s sworn evidence that was tested and the documentation opened to this tribunal. I am satisfied that this tribunal has sufficient evidence to make a finding fairly on the matters before it concerning; the Unfair Dismissal Complaint; failure to pay minimum notice and the payment of wages claim.

On the facts it is not appropriate to reinstate or re-engage the Complainant. The most appropriate remedy in this case is compensation. The working relationship between the parties has broken down. The organisation is relatively small and there is someone in the role or similar role for some time.

The Unfair Dismissals Act 1977 provides for redress relating to financial loss when reinstatement or reengagement is not considered appropriate.

The Act also states that the Adjudicator can have regard to Redress for unfair dismissal:

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

I also note in Dismissal Law the following:

[24.67]

When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd. 106 Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal.

And:

The Supreme Court 107 held on a case stated from the Circuit Court that:

(1) There was no doubt that the conduct of an employee was material in determining his or her rights to redress under the 1977 Act.

(2) Under s 6 of the 1977 Act, if the dismissal resulted wholly or mainly from the conduct of the employee there would be no right to redress whether by way of reinstatement or compensation. The Court remarked: ‘Indeed one of the surprising features of the present case is that the EAT having found that the claimant “contributed substantially towards her dismissal” ... had satisfied themselves that the employee had not contributed wholly or mainly to her dismissal.’

(3) The discretion conferred upon the tribunal (or other adjudicating body) by s 7 of the 1977 Act in relation to the computation of a payment by way of compensation was very wide.

I also note the obligation on the Complainant to mitigate her loss:

`I note in Dismissal Law the following:

In Sheehan v Continental Administration Co Ltd 114 the EAT endorsed the position set out in the second edition of this work that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.’ 115 This passage was recently adopted and applied by the Workplace Relations Commission in deeming a claimant to have made insufficient effort to mitigate his loss. 116

Where the complainant has been unavailable for work and thereby has not availed of opportunities to mitigate his or her loss, compensation will normally be reduced accordingly.

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

Unfair Dismissal Award:

The test to be applied is an objective one in determining if the employee acted reasonably to mitigate loss.

The Complainant set up her own practice and her loss has been reduced; however, continues to this day. I consider that 1 year’s compensation is reasonable allowing for the fact that the manner of the dismissal affected the potential of the Complainant to seek an alternative role and had limited options to pursue to re-establish herself. Based on her P45 dated 31st May 2015 her gross salary up to cessation was €33729.23 and this equates to annual earnings of €80,949. I award the Complainant €90,000 Gross less any statutory deductions for her financial loss arising from her Unfair Dismissal and have adjusted up allowing for the passage of time to reflect actual financial loss having regard to inflation that is more than this adjustment. I order the employer to pay the Complainant €90,000 Gross in compensation.

Minimum Notice Award:

The Complainant received no notice and is entitled to 4 weeks’ notice. Her annual salary of €80,942 equals €1557 gross per week and I award €6227 in compensation equivalent to 4 weeks’ notice and I order the employer to pay this amount in compensation.

Payment of Wages:

Allowing for the date of termination letter which was the 13th of July 2015 the Complainant is also due payment from the 1st of June up to the 13th of July 2015. Her last pay day was the 31st of May 2015. The p45 details a cessation date of 31st May 2015; however, the date she was informed of her dismissal was the 13th of July 2015. This amounts to 6 weeks payment which is €9340.38 Gross and should be paid less statutory deductions and I order the employer to pay this amount in compensation.

Stay on hearing-Procedural Ruling-Lifting of Stay-Prejudice-Non-Attendance Key Witness-Medical Grounds-Redundancy-Fair Selection-Impersonal -Reasonableness of Employer Conduct-Stay-Parallel Proceedings-Statutory Claim