Complainant

Respondent

Parties

Siobhan  McDonagh

James P. McCann Ireland Limited

Representatives

Setanta Solicitors

 Peninsula Business Services Ireland

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-00071768-001

21/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00071768-002

21/05/2025

The Complainant gave evidence on Affirmation. She was represented by her solicitors Conor McCrave and Jennifer O’Toole  at the hearing.

Mr Seoirse McCann, Managing Director gave evidence on behalf of the Respondent. Mr Peter Dunlea of  Peninsula Business Services Ireland represented the Respondent.

The Complainant’s evidence was that she commenced employment on 2 July 2007 in the Accounts and Finance Department and had accrued 17 years’ continuous service until she said she was dismissed on 7 March 2025.

It was her evidence that her employment transferred to the Respondent on 5 April 2023 under TUPE with her service preserved.

At the date of termination, her salary was €50,355.24 per annum.

The Complainant gave evidence that on 13 January 2025, while at work in the shared office, she was informed by a colleague, Ms Tanya McCann, that redundancies were anticipated in the company due to sums owed to Revenue. Later that same day, she was approached at her desk by Mr Jim McCann and Ms Anita McCann, owners of the Respondent company. She gave evidence that Mr McCann informed her that she was being “let go” and made redundant. Upon querying whether other employees were affected, she was told that she was the only employee being made redundant. She said she was informed by Ms McCann that a redundancy package would be provided at a later stage, though no details were given.

The Complainant’s evidence was that on 16 January 2025 she attended work as normal and was informed by Ms Siobhán Breen, HR and Office Assistant, that no other employees of the Respondent were being made redundant, but that employees of a separate company, Starville Promotions Limited, which is also connected to the McCann family, were to be made redundant. She was further informed that her last day of employment would be 7 March 2025.

She stated that later that day Mr McCann asked her whether she had received “the letter”. When she indicated that she had not, he laughed and handed her a letter dated 15 January 2025 confirming her redundancy. The Complainant gave evidence that the letter referred only to a “decline in business” as the reason for redundancy, without further explanation. She was asked by Mr McCann to make a copy of the letter for him.

The Complainant’s evidence was that she queried whether she would receive a redundancy payment and was told that she would have to apply to the State for her statutory redundancy. She again queried whether she was the only employee impacted and was told that she was the only employee of the Respondent being made redundant, although reference was made to employees of another associated company. She further stated that when she asked whether the Respondent company was closing, Mr McCann replied that it would not be liquidated and described the business as “flying” and making “a load of money”.

The Complainant also gave evidence that Mr McCann suggested she could return to work one or two days per week “for cash off the books”. She continued to carry out her duties up to the termination date of 7 March 2025.

Prior to the termination of her employment, the Complainant stated that she became aware that no employees of Starville Promotions Limited were, in fact, being made redundant, contrary to what had previously been indicated to her.

The Complainant applied for and received her statutory redundancy payment from the State. Her solicitors wrote to the Respondent on 15 April 2025, and she gave evidence that no response was received.

Mitigation of Loss

It was the Complainant’s evidence hat she applied for numerous jobs and gave evidence that she applied citing over 20 jobs from Indeed and Jobs.ie. To date she has been unsuccessful.  She submitted her loss to date was €39.218.98 based on the calculation of her gross wages.

There was no objection from the Respondent.

The Complainant relied upon its legal submissions and in particular JVC Europe Ltd v Panisi [2011] IEHC 279, Students Union Commercial Services Ltd v Alan Traynor [UDD 1726], A Sales Director v An IT Company [ADJ-00023978], Tanneron Ltd v Conolin [UDD 2151], Production Line Lead v Employer [ADJ-00024721], White v Yenom Ltd [UD/993/2009], Mulcahy v Kelly [UD/719/90], Trinity College v Mr. Iftikhar Ahmad [UDD 2030], Students' Union Commercial Services Ltd v Alan Traynor [UDD 1726] Production Line Lead v Employer, ADJ-00024721, Mulligan v J2 Global (Ireland) Ltd (UD/993/2009), and Free v Oxigen Environmental UD206/2011

 Mr Seoirse McCann, Managing Director gave evidence on behalf of the Respondent.

He accepted that the Complainant’s employment terminated on 7 March 2025 by reason of redundancy but contended that this constituted a fair dismissal arising from a genuine redundancy situation.

He further accepted that the Respondent had not paid the Complainant her statutory redundancy entitlement directly but stated that he understood she had subsequently received payment from the Department of Social Protection.

Mr McCann gave evidence that the Complainant commenced employment with Kimble Gaming Limited on 2 July 2007 and that her employment transferred to the Respondent under TUPE on 5 April 2023, with her service preserved, following the insolvency of her previous employer. He stated that Kimble Gaming Limited functioned as a management company for a group of associated companies which included the Bingo Hall in Dundalk.

He outlined that the Complainant’s role involved preparing accounts for a group of companies operating arcades, numbering up to twelve at their peak, all owned and operated by the same principals. However, he said there had been a significant reduction in the number of companies within this group, with only two entities continuing to trade at the relevant time. He further stated that the group companies had previously invoiced the Complainant’s employer for her services, but that this arrangement had ceased even prior to some entities ceasing trading.

Mr McCann’s evidence was that the Respondent experienced a downturn in business and financial difficulties, including issues concerning the premises from which the Complainant worked. He said this resulted in a reduction in staff in late 2024 and led the Respondent to consider further redundancies. He stated that at that time, the Complainant was the only full-time employee working in the office, with other full-time employees working in the Respondent’s arcade operations.

He gave evidence that an assessment was carried out and it was concluded that the Complainant’s role would be made redundant. He said that this decision was based on the significant reduction in the volume of work available to the Complainant due to the contraction of the group of companies and the downturn in business.

Mr McCann stated that the Complainant was informed on 13 January 2025 that her role would be made redundant, with a termination date of 7 March 2025. He confirmed that she was the only employee made redundant at that time.

In response to the Complainant’s account, Mr McCann denied that any statement had been made to the effect that the company was “flying” or making substantial profits. He maintained that the Respondent was in fact experiencing significant financial difficulty and was exploring the potential sale of the business.

Finally, Mr McCann gave evidence that following the termination of the Complainant’s employment, her duties were outsourced to an external accountancy firm and that she was not replaced by any new employee.

Legal Submissions were relied upon by the Respondent and in particular, Williams –v- Comp Air (1982) 1 ICR 156, JVC Europe Ltd v Panisi [2011] IEHC 279, Mulligan v J2 Global (Ireland) Ltd (UD/993/2009),

Section 6 of the Unfair Dismissals Acts 1977 (the “Acts”) sets out the legislative basis for a complaint of unfair dismissal:-

“6.—(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.”

Redundancy is specifically provided for in Section 6(3) of the Acts.

In considering this complaint, it is noted that it is common case that the Complainant’s employment terminated on 7 March 2025 and that the dismissal was attributed to redundancy. It is further noted that the Complainant applied for and received her statutory redundancy lump sum from the Social Insurance Fund, albeit not directly from the Respondent. This supports the position of both parties that the dismissal arose in the context of a redundancy situation.

In those circumstances, I am satisfied that a redundancy situation existed within the meaning of the Redundancy Payments Acts.

Consequently, the issue for determination is whether the Complainant was selected and afforded fair procedures.

It is well established that the mere existence of a redundancy situation does not, of itself, render a dismissal fair. The Act requires that, even in circumstances of genuine redundancy, the manner in which the dismissal is affected must satisfy the requirements of fairness, including fair selection and fair procedures.

This position is supported by JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

The Complainant gave evidence that she was the only employee made redundant within the Respondent. This was undisputed by the Respondent. While this of itself does not render the dismissal unfair, when coupled with the absence of any clear explanation or objective selection process, and the inconsistent explanations provided regarding redundancies in related entities, it gives rise to concern.

Further, the Complainant’s evidence was that no meaningful consultation took place. She was informed of the decision on 13 January 2025 and subsequently provided with a letter confirming redundancy days later with no engagement in the intervening days. Again, this was not disputed by the Respondent.  Consequently, I find there was no evidence of prior consultation, objective selection criteria, or a right of appeal.

In this regard, the Complainant’s reliance on Mulligan v J2 Global (Ireland) Ltd (UD/993/2009) is , where it was held:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy… the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act…”

In terms of the consideration of alternative positions, it was undisputed that the Complainant was the only employee made redundant. The Respondent stated that the only other roles were operational in nature; however, these were not discussed with or offered to the Complainant. Having regard to the Complainant’s 17 years’ service, the absence of any meaningful engagement or exploration of alternatives is notable.

In this respect, I place reliance on Students' Union Commercial Services Ltd v Alan Traynor [UDD1726], where the Labour Court stated:

“The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/ suggestions. The Court can accept that had such an exercise been carried out it may not have identified any alternative positions suitable to the Complainant; however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.”

The Respondent did not provide evidence of any structured or fair selection process, notwithstanding that redundancy selection must be conducted in a transparent and objective manner, even where only one employee is affected. It is further noted that neither Mr Jim McCann nor Ms Anita McCann, who were directly involved in the relevant events, gave evidence at the hearing.

In addition, the Complainant gave uncontradicted evidence that she was invited to return to work on a casual “off the books” basis following her redundancy. This is difficult to reconcile with the Respondent’s position that the role had ceased and undermines, to some extent, the credibility of the redundancy process.

Having carefully considered all the evidence, it is accepted that the Respondent experienced a downturn in business and that a redundancy situation existed.

However, I find that the Respondent has failed to demonstrate that the dismissal was affected in accordance with fair procedures. There was no meaningful consultation, no objective or transparent selection process, and no consideration of alternative employment.

These are significant procedural defects.

Accordingly, I find that the Complainant was unfairly dismissed.

Where the Complainant has been deemed to be unfairly dismissed from her employment, she is entitled to redress under Section 7 of the Act. In considering what would be an appropriate form of redress, in this instance compensation is the most appropriate option.

In assessing redress, having regard to Section 7 of the Unfair Dismissals Act 1977, which requires that compensation be just and equitable having regard to all the circumstances, including the financial loss sustained by the Complainant as a result of the dismissal.

The jurisprudence in this area has its origins in Sheehan v Continental Administration Co Ltd (UD858/1999), in which it was held that a dismissed employee must make reasonable efforts to mitigate their loss by actively seeking alternative employment. It is not sufficient merely to register availability or make minimal applications.

However, more recent decisions have adopted a more balanced approach. In Caroline O’Connell v Lionbridge International Unlimited Company (ADJ-00057077), the Adjudication Officer emphasised the need to consider all elements of Section 7(2). Similarly, inKathryn O’Boyle v Temperature Controlled Pharmaceuticals Limited (ADJ-00032667), it was held:

“It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort to mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.”

This approach in appropriate based on the findings in the present case

It is accepted that the Complainant did not contribute to her dismissal and that the dismissal arose in circumstances where the Respondent failed to apply fair procedures.

Turning to mitigation, the Complainant gave evidence that she applied for between 20 and 30 roles. However, no documentary evidence was provided to support this assertion. Her evidence as to her job seeking efforts was vague and lacked detail.

The Complainant has remained unemployed from March 2025 to the date of the hearing in December 2025. There was no evidence before me of attendance at interview, engagement with recruitment agencies beyond general assertion, or any efforts to upskill or broaden her employment prospects.

While I accept that the Complainant had a long-established career in accounts and finance and that her preference was to apply for roles within that field, this must be balanced against her statutory obligation to mitigate her loss.

Accordingly, I find that the Complainant’s efforts to mitigate her loss were limited and fall below the standard set out in Sheehan. However, I also find, in line with O’Boyle, that it would be unjust to place disproportionate weight on mitigation in circumstances where the Respondent’s conduct was significantly procedurally deficient.

The Complainant’s gross annual salary was €50,355.24. She submitted that her financial lossamounted to €39,218.98, based on her gross earnings.

Taking all relevant factors into account, including the Complainant’s 17 years’ service, the absence of any contributory conduct, the significant procedural failings by the Respondent, and the limited evidence of mitigation efforts.

Accordingly, I find that it is just and equitable to award compensation 6 months financial loss in the sum of €25,177.62 reflecting a reduced period of loss to reflect the Complainant’s failure to adequately mitigate.