Complainant

Respondent

Parties

James  Higgins

M.H Gill & Co. Unlimited Company Gill Education

Representatives

Mr. C McGovern, BL instructed by Mr. D Quinlan, Crushell & Company Solicitors

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-00066905-001

23/10/2024

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

CA-00066905-002

23/10/2024

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

CA-00066905-003

23/10/2024

The Complainant was employed by the Respondent as an Education Sales Representative from 3 March 2014 until his employment was terminated on 6 August 2024.  The Complainant confirmed that the reason given for his dismissal was redundancy, however he contended that he was unfairly dismissed.  He also contended that he was not paid the full amount of annual leave due to him upon termination of his employment.

It was the Respondent position that the dismissal was a genuine redundancy and was not unfair, that it was a valid, necessary and fairly executed redundancy. It was also the Respondent position that all payments due to the Complainant had been discharged.

By way of background, the Respondent outlined in its submission that the Complainant was employed by the Respondent from 3 March 2014 until 6 August 2024 as a Sales Representative covering the North West region.  He was in receipt of a basic salary of €44,125 and had the potential to earn up to €4,000 in bonuses and commissions per annum, based on annual agreed targets made with the Sales Manager/Director.  The Respondent submitted that the average bonus/commission earned in years 2021-2023 was €3,398.  In addition, the Complainant was provided with a company vehicle and his notional pay for tax purposes over the years 2021-2023 averaged at €1,516 per annum.  The Respondent submitted that the role was made redundant following a broader strategic review and restructuring of the sales team. 

The Respondent outlined that it was one of Ireland’s longest established publishing companies, with operations spanning trade publishing, education publishing and distribution.  The Respondent had a head count of approximately 90 employees and received positive feedback as a “good organisation to work for” in a recent staff survey.  The Respondent outlined that it had good employment practices in place comprising of the following:

·         A comprehensive employment handbook – updated annually

·         Employment contracts for all staff

·         Job descriptions for all staff

·         Mandatory training compliance for all staff

·         Compliance with all employment law requirements

·         Comprehensive engagement processes – performance management, competency framework, annual engagement survey etc.  In addition to the above the Respondent has a HR service which has been retained to support the ongoing HR needs of the organisation when required

CA-00066905 – 001 (Unfair Dismissal)

It was the Respondent position that the Complainant’s dismissal was a genuine redundancy and was not unfair.  The redundancy was valid, necessary and fairly executed. 

The Respondent stated that the commercial rationale for the redundancy was as follows:

·         The company’s profitability declined sharply between 2021 and 2023, transitioning from a €1.367 million pre tax profit, to a €283,000 loss. 

·         The education division underperformed by €770,000 in 2023 and unsuccessful primary publishing was a major contributing factor. 

·         The market disruption caused by the free school book scheme and reduced government funding, further pressured the business model.

The Respondent submitted that the context and rational for the redundancy was as follows:

·         In 2018, the company made a decision to undergo a period of heavy investment in Core Primary Publishing.  A proposal was made to the supervisory board, which included hiring three extra Sales Reps, thereby increasing the number to 12.  It was hoped that this investment would bring increased revenue and profit to the business

·         At the end of 2023, it became clear that the Education Division had fallen very short of budget.  This shortfall was the main contributing factor to the Respondent making a significant loss in that year.  The Respondent provided details of variance against budget showing a loss of €770,000 for the Education Division

·         In addition to this, the way in which school books were purchased, had undergone a dramatic change over the previous two years.  The new free school book scheme, introduced by the government in 2023, had changed the purchasing model in the school text book market.  Schools were now given a grant to purchase text books and they were strongly encouraged to set up rental schemes to allow for consistent reuse of text books.  In 2024 the funding was reduced by €16 per pupil at primary level.  Rental schemes and a reducing grant, was anticipated to shrink the market over time

·         In light of the above the Supervisory Board asked that a review of the Sales Team be done, with a view to consolidating and streamlining, in order to save costs.  Changes were needed if the company was to remain competitive

·         The Sales Management team did this review and concluded that the most effective and manageable way to save costs would be to make two Sales Representative roles redundant, in Mid South and North West.  These roles were chosen for a number reasons and the changes were to come into effect in June 2024 so that a new system/approach would be ready for the new school year of September 2024

Resourcing background:

The Respondent submitted that at the time of the review there were 12 representatives covering all of Ireland, the Sales Manager being one of the Representatives covering Meath County.  Ten other Sales Representatives covered primary and secondary schools and one representative covered secondary schools only. 

The Respondent submitted that the resourcing review focused on the composition of the territories and the following issues were considered:

·         The impact any reduction of sales presence would have on achieving the organisations goals into the future

·         The amount of change to existing territories, as in limiting change to keep stability with customer base

·         The geographical coverage of the current team and where reallocation would have the least impact in terms of travel

·         Territory size in terms of keeping any remaining territory manageable, i.e. not too big for one Sales Representative to cover

Structure modification:

Modification 1:

The Respondent submitted that the current territory allocation at the time of the review split Cork between two representatives; this had occurred over time due to various staff/organisation changes.  It submitted that Cork was a large and important territory, and it would be preferable to have one representative dedicated to the county to capitalise on proximity and inter connected relationships.  The two representatives in the Cork area currently manage the areas as follow:

·         Role 1 – Cork City, East, West and South

·         Role 2 – Cork North/Tipperary

The review concluded that with the reallocation of Tipperary to another representative, one representative could manage Cork County in full. 

Given that the Cork City, East, West and South Representative had the largest territory in Cork, and therefore the most customer relationships there, that Representative was considered best placed to take on the rest of Cork from the redundant role.

As Tipperary had the largest border with Limerick, the Kerry/Limerick Representative would take on the Tipperary territory.  The additional driving in this role would have the least impact on this Representative and the new total of schools was considered manageable. 

The Respondent submitted that the role of the Sales Representative in Cork North/Tipperary had been made redundant as per the reasons outlined above and that therefore the rationale for making that position redundant was that the consolidation of the Cork area would mean that there was no requirement for a Cork North/Tipperary Sales Representative.  In addition, the role of the Cork City, East, West and South Representative, was expanded to take in North Cork and the role of the Representative covering Kerry and Limerick would be expanded to include Tipperary. 

Modification 2:

The Respondent submitted that the North West region posed some difficulty in relation to cost effective coverage in the context that it is a very large geographical area with many areas of sparse population.  The Respondent noted that some companies had moved to inside sales/sales support for counties in this region and that the Respondent would now move to this model for part of the region.  The Respondent submitted that its strategy going forward would be to concentrate on the more densely populated areas along the Eastern seaboard and other major cities, eg Galway, Limerick, Cork etc. 

The Respondent submitted that following two years with the new position of Sales Manager in the business, it was now clear that there was some capacity for this role to cover more territory and in that context the Sales Manager would take over the responsibility for the Cavan/Monaghan part of the North West territory.  The Representative in the West would now take on Mayo because of proximity and this would mean that the South Dublin Kildare Representative would take over Offaly due to a smaller current territory and proximity to larger towns in that county.  The remaining counties of Donegal, Sligo, Roscommon and Leitrim would be remotely serviced.  The Respondent submitted that with the reduced number of Representatives each Representative would now be tasked with visiting the largest 230 primary schools rather than the previous number of 200 schools.  The largest schools in the areas would now receive samples via mail.  In addition, each Representative would not be required to physically visit secondary schools with fewer than 200 students unless they are a new and growing school and those schools would have samples posted to them allowing more time for the Representative to concentrate on the larger schools.  The Respondent noted that there were 300 schools with less than 50 pupils in the North West region. 

In summary, the role of the Representative in the North West was made redundant based on the reorganisation outlined above and the Respondent submitted that the restructuring process was guided by criteria such as student density, geographic coverage and servicing costs.  The Respondent submitted that the Complainant’s role was identified for redundancy due to sparse school distribution and feasible remote servicing. 

Process:

The Respondent submitted that the opportunity for consultation was impacted because of the timely need to implement the review and the inaccessibility of Sales Representatives who typically were given additional paid annual leave during the summer months in line with the academic year.  The Respondent submitted that though consultation was not carried out prior to notification, attempts were made to reach and have engagement meetings with the Complainant.  The Respondent submitted that the purpose of those planned meetings was to outline the rationale for the redundancy to the Complainant, to discuss that redeployments had been considered but that had proved not possible and it was also planned to outline the appeals process to the Complainant if required. 

The Respondent submitted that the Executive team had considered alternative roles around the business but given the financial position and the size of the organisation, no alternative roles were available.  The Respondent submitted that following the redundancy, limited recruitment took place and other measures taken in 2024 were as follows:

·         No inflation based company wide general salary increases

·         Consolidation of Customer Services teams leading to a reduction in headcount of 2 and the conversion of one role from a Manager level role to an Assistant level role.  During this process, two managerial roles were made redundant

·         5% cut in all marketing spend for both Gill Education and Gill Books

·         The suppression of the Permissions Editor role

·         Redundancy of one other Gill Education Sales Representative role

·         Non recruitment of full time warehouse staff to replace leavers

Appeal:

The Respondent submitted that following a request for an appeal from the Complainant, the Company conducted a full internal appeal, led by an independent Consultant, Mr. BK.  The appeal acknowledged the Complainant’s contribution but confirmed that redundancy was legitimate and necessary. 

Employer response to redundancy claim:

The Respondent outlined its position that the redundancy was valid, necessary and fairly executed, that the Complainant’s territory accounted for just 7% of the national student population, over 15% of the land mass and submitted that the regions logistical inefficiencies and school sparsity, informed the redundancy.  The Respondent also submitted that the Complainant’s responsibilities were redistributed across other Representatives and Customer Service and that the company did not simply reassign his workload, but restructured coverage, confirming role elimination. 

The Respondent submitted that the Complainant was offered a redundancy payment of €29,524 based on three weeks’ pay per year of service, taking into account commission, bonuses and benefit in kind.  The Complainant was covered under the Redundancy Payments Acts 1967-2003.  The Respondent noted that the Complainant was entitled to two weeks’ pay for each year of continuous and reckonable service and the equivalent of one weeks normal weekly pay, subject to a statutory ceiling of €600 per week.  The Respondent submitted that it had paid an additional one week per year service (three weeks in total) and included an amount for benefit in kind, bonuses and sales commission, based on the last three full calendar years when calculating weekly pay and the Respondent submitted a breakdown of the redundancy payment. 

The Respondent noted that the Complainant refused the redundancy payment and returned the funds. 

The Law:

The Respondent outlined its position that the Complainant was not unfairly dismissed.  The Respondent noted that the Complainant’s dismissal was by reason of genuine redundancy and that fair procedures were followed as best they could under the circumstances whereby the Complainant was not available to engage with the Respondent.  The Respondent noted that Section 6 (3) of the Unfair Dismissals Act, 1977, states the following:

(3) “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 Respondent 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 thatprocedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

The Respondent submitted that the Complainant was unable to contest the dismissal due to redundancy as he did not meet the above requirements.

The Respondent noted section 6 (4) of the Unfair Dismissals Act, 1977, which states:

“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 Respondent 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.

The Respondent also noted Section 6 of the Redundancy Payments Act, 1967-2014, which defines redundancy as follows:

“(a) the fact that the Respondent 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, and/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, and/or

(c) The fact that the Respondent 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, and/or

(d) the fact that the Respondent has decided that the work for which the employee had been employed (or had been doing before his/her dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, and/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/her 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 Respondent submitted that the Complainant’s dismissal resulted wholly from the “redundancy of the employee” and submitted that the dismissal was by reason of genuine redundancy and relies on section 7 (c) as outlined above. 

CA-00066905 – 003 (Payment of Wages Act)

The Respondent submitted that all payments were made accurately and fairly and that no breach of the Payment of Wages Act had occurred.  In relation to the Complainant’s notice and final salary, the Complainant received six weeks notice, which was provided starting 25 June 2024.  The final date of employment was 6 August 2024.  The Complainant was not expected to work during this period as all Sales Representatives are on annual leave for the summer period.

In relation to redundancy payment processing the Respondent submitted that on 8 August 2024, a consolidated payment of €30,476.98 was made to the Complainant.  The Respondent submitted that this included €13,128 of statutory redundancy, €16,396 of additional redundancy payments and €952.98 of final payment.  The Respondent noted that the Complainant returned this payment and stated in an email, dated 9 August 2024, that he did not accept the legitimacy of the redundancy. 

The Respondent provided the following details of payment:

The Respondent acknowledged receipt of returned funds and confirmed in writing that the final pay amount would be reissued separately.  The email dated 9 August from the CEO stated “The redundancy payment recently made was a consolidation of your final pay in addition to the calculated redundancy payment.  We will send by bank transfer your final pay element by close of business tomorrow.  This amounts to €952.98.  The remaining redundancy payment will remain on account until we receive your instruction”.

The Respondent submitted that no formal or itemised claims for travel or subsistence had been submitted by the Complainant and confirmed that the Respondent remained open to reviewing any valid claims. 

In conclusion, the Respondent respectfully requested that the Adjudication Officer find in its favour and submitted that the Respondent at all times acted in good faith in running a fair redundancy process.  The Respondent submitted that it had provided evidence that it was in a poor financial situation at the time of the redundancy and had to adapt its service model in order to improve sales and reduce costs.  As a consequence, the head count for the Sales Department was reduced at that time.

The Respondent submitted that the Complainant’s role was distributed among the remaining Sales people following his exit, and that a genuine redundancy occurred under Section 7 (c) of the Redundancy Payments Act.  The Respondent submitted that it made multiple efforts to engage the Complainant in a fair and robust process preceding the redundancy outcome and arranged an appeal with an independent external party.  The Respondent respectfully submitted that the claim should fail.  In addition, the Respondent submitted that all wages and entitlements were paid or accounted for and that no underpayment had occurred. 

The Respondent submitted a copy of the Contract of Employment and all other documents referred to in its submission.

Representations at hearing:

The Respondent representative outlined that the Respondent had lost money and had gone from a situation of being in profit to experiencing a loss.  In that context, the management were instructed by the shareholders to achieve savings and it was clear that redundancies would be required in order to achieve those savings.  In these circumstances, the Respondent was obliged to make a number of positions redundant and the Respondent representative outlined that the redundancies were not aimed at any individual and were unrelated to the Complainant.  He stated that it was purely a business decision and that redundancy payments were paid to all relevant staff and that this redundancy payment was significantly above the Respondent statutory obligations.  The Respondent representative read the Respondent submission into the record.  The Respondent representative noted that the Complainant had stopped claiming subsistence in 2022 and confirmed that the Respondent was open to a claim for subsistence in that regard if appropriate submissions and evidence were supplied. 

The Respondent representative outlined that based on the review of the areas, there were no other areas suitable for redeployment and in circumstances where the Respondent was unsure of the future and in a loss-making situation, it was necessary to make a decision on cost savings.  The Respondent representative noted that a year on from the redundancy situation, the Respondent had no plans to re-employ an additional Sales Representative in that area and have used existing senior staff to cover the schools in that region.  The Respondent representative noted that the Complainant’s appeal had been heard by an independent expert who had stated that it was a valid redundancy situation. 

Witness evidence – Ms Burns:

Ms Burns confirmed that the company had invested heavily in publishing in 2018.  She stated that one of the Respondent’s core schemes had not succeeded at all and that others had not performed and that €500,000 of savings were needed in the coming year.  She stated that it was a difficult time with difficult decisions to be made, that there had been cutbacks on the marketing budget and non-replacement of staff and that they had only replaced staff at the lower levels.  She stated that the Sales team had been increased but that there was now a need for a reduction.  She stated that everybody found this very difficult, that they were a very strong team, that they took into account the geography of an area, the logistics of managing the activity of that area and the student numbers in the area.  She stated that on foot of that review, it was decided to remove two roles and to assign the areas involved to other Sales Representatives.  She stated that they also amalgamated some of the work of Sales and Customer Services and based on an analysis of the figures involved, that a decision was made. 

She confirmed that the decisions were made in relation to the North West region and the Southern region.  She stated that it was based on two modifications set out in modification 1 and modification 2, and that student numbers were a significant factor in the decision making.  Ms Burns confirmed that the Respondent had attempted to meet the Complainant to explain their process and how they had reached the conclusion and had arranged a meeting for 25 June, however she confirmed that the Complainant had tested positive for COVID and that in those circumstances he was not fit to attend.  She further advised that the Sales Representatives get the summer off but that the Respondent was under a time pressure to have the new assignments ready for September and she stated that they were very conscious of the delicacy of the matters to be discussed and the need for a meeting.  She stated that she and the Complainant were planning to go to Sligo but that the Complainant was not available and so they had not managed to conduct a meeting. 

Cross examination – Ms Burns:

In response to questions from the Complainant representative, Ms Burns confirmed that the identification of roles to be made redundant was probably made in or around May 2024.  In response to a question of how many positions were at risk of redundancy, Ms Burns confirmed that the Respondent was undertaking the review and it was only at that point, that it became clear what roles were at risk of redundancy.  She confirmed that the Sales Manager took on additional territories as part of his workload.  She stated that originally when his position was put in place, this was a new role and it was untested so the company was unsure what capacity would be involved in that role.   However, it had become clear that the role could assume other work.  The Complainant representative asked Ms Burns why the Manager role had not been made redundant and she confirmed that it was clear to the Respondent that that role was needed but that it had been identified that it had capacity to take on other work. 

The Complainant representative asked Ms Burns if the fact that the Complainant had over ten years of loyal service, had this been taken into account and she confirmed that it was considered.  The Complainant representative put it to Ms Burns that the process was flawed and asked her to clarify what was the process.  She confirmed that the intention was to meet with the Complainant to explain to him the review that had taken place and to advise him that he had been identified for redundancy.  The Complainant representative asked was he identified as a potential or was he selected for redundancy and she stated that he was identified for redundancy.

The Complainant representative put it to Ms Burns that the company policy provided for appropriate consultation in such circumstances and Ms Burns accepted that that was indeed what was contained within the policy.  Ms Burns accepted that an email had been sent to the Complainant on 24 June 2024 at 4:30pm inviting him to a meeting regarding his redundancy.  The Complainant representative drew Ms Burns attention to the content of the correspondence of 24 June 2024 which referred to “the realignment of the North West territory” and asked her what did this mean.  He asked her how did she think the Complainant would interpret such a correspondence.  Ms Burns advised that she thought he would possibly think that his job was at risk.  The Complainant representative put it to Ms Burns that it was very late in the day to send such an email given that the matter was described by herself as “so delicate” and asked her to explain how that occurred.  Ms Burns confirmed that it was not how the Respondent would have liked to do it, in fact they would have liked not to have to do it at all.  She accepted that perhaps it had not been handled correctly and she stated that she believed that if there had been an opportunity to meet, that the outcome would have been very different.  She stated that she couldn’t say how it would be different, but she felt that in person would have made a significant difference. 

The Complainant representative put it to Ms Burns that the email from the Sales Manager was simply referring to a Teams meeting, but that it made no mention of consultation or alternative work, or no mention of the selection criteria for redundancy.  Ms Burns confirmed that the Respondent was suppressing roles and reducing pay.  The Complainant representative put it to Ms Burns that perhaps the Complainant could have covered other locations and simply if his location was being realigned, why was this not considered.  Ms Burns confirmed that the Respondent had “cut this several different ways” and in the end the way that was decided upon was to provide service to the high-density areas and she stated that the decision was legitimate and genuine.  The Complainant representative put it to Ms Burns if that was the case she should have shareed that information with the Complainant rather than sending an email so late in the day with no prior warning. 

Ms Burns confirmed that the education needs of children in the Donegal area are now covered through the Customer Service team and that samples are posted out automatically.  She confirmed that there was generally no personal face to face service in that area, but she had confirmed that the Sales Manager had travelled to the area for an event. 

The Complainant representative drew Ms Burns attention to a letter which had been provided to the Complainant when he had been selected for jury duty, where the Respondent described his role as “integral and essential” and asked that he be excused from jury duty in those circumstances.  He asked Ms Burns if she accepted that letter.  Ms Burns confirmed that she did and stated that at the time, the Customer Service team were not set up or trained to service the area.  She confirmed that the restructure took place over the course of July and August.  The Complainant representative noted that the Complainant was dismissed in June and Ms Burns responded that that was because of school holidays and the Complainant would not be working while on holidays. 

Following a number of enquiries from the Complainant representative, Ms Burns confirmed that she could not give a precise date on when the decision was made regarding the redundancy and she accepted that the redundancy had come as a significant shock to the Complainant.  The Complainant representative asked Ms Burns if she should not have been aware of the need to have key dates available for the hearing today and Ms Burns said she did not know how redundancy worked and she agreed that the Respondent could have done better.

Witness evidence – Mr Colm Hyland:

Mr Hyland confirmed that the Sales Manager was hired in March 2024 and that as part of his brief, he covered the area of Meath and Louth.  In response to questions as to why the North West was selected as one of the areas to be redistributed, Mr Hyland said there was no perfect solution, that the East coast had a bigger population and that the territory in the North West was made up of a lot of small schools and therefore it seemed suitable for redistribution.  Mr Hyland confirmed that there was no representative now covering the North West other than to attend perhaps a roadshow where you would meet all schools in the area and collect contact names.

Under cross examination, Mr Hyland stated that he was told of the decision to make cuts in early May but that he did not have the exact date.  He confirmed that at the time he did not inform the staff as a decision had not been made and that it was not in the best interests of either the business or the staff to create instability and uncertainty at that time.  He confirmed that he was aware of the law and of the company policy which set down the obligation to inform staff that their roles might be at risk of redundancy, but he said that while he was aware of that legislation, no decisions had been made at that time.  Mr Hyland stated that he told the Education Sales Manager in May of the need for cuts and advised the two staff concerned once they were identified.  He stated this was probably around mid-June but he did not remember when.

The Complainant representative drew attention to the invitation to the meeting with the Complainant to advise him of the redundancy and he asked why he had stated in that, that it was a meeting to discuss the realignment of Sales Representatives, rather than redundancy.  Mr Hyland said that while it didn’t state redundancy, he felt it explained the seriousness of the meeting.  The Complainant representative stated that actually it talked about a change of the sales focus and in those circumstances it would not be recognised by the Complainant that the meeting was to discuss redundancy and Mr Hyland stated that he did not agree with that position and that he felt that just stating a meeting to discuss redundancy in an email would be a very blunt way of introducing the topic to the Complainant.  He stated the Complainant was unavailable for the Teams call and as a consequence, he had no option but to inform him by email.  He stated that he could not wait for the annual leave to come to an end and that it would have gone on for a further two months.  The Complainant representative put it to Mr Hyland, that he should have given the Complainant the time to recover from his illness and then meet him, even as a professional curtesy.  Mr Hyland responded by saying “how long is a piece of string” and he stated that there was a need to move ahead.  He stated that he did not see any opportunity for redeployment of the Complainant.

The Complainant representative asked Mr Hyland if he believed that he had conducted a fair process and Mr Hyland responded that when it comes to letting people go, it is always a horrible process, but that the Respondent was left with no choice because of holidays and sick leave arrangements.  The Complainant representative put it to Mr Hyland that the whole process was in fact an ambush and Mr Hyland said that he did not accept that position.  The Complainant representative asked him if it happened to himself, would he have liked to be made redundant and Mr Hyland said, “well I would have taken the meeting”.  The Complainant representative put it to Mr Hyland that the Complainant was unwell and so unable to attend the meeting and Mr Hyland responded, “so he said”.  Mr Hyland stated that he felt the right thing to do was to confirm the redundancy arrangements in an email because he did not want the Complainant to hear the situation from anybody else.  The Complainant representative put it to Mr Hyland that the Complainant had suffered reputational damage because of the speed of the redundancy and Mr Hyland said he did not accept that was the case.  Mr Hyland confirmed that the Sales Manager had drawn up the redundancy arrangement and that it had been signed off by a more senior member of staff.

Some discussion took place about the realignment of various areas and the possibility of the Complainant being assigned to other areas and Mr Hyland dismissed all of those as not being viable options.  The Complainant representative asked Mr Hyland if he accepted that while there might have been a correct rationale for a redundancy situation, it was executed in a flawed and illegal manner and Mr Hyland stated that he did not accept that it could have been done any differently.  He stated that he believed, given the number of employees, that he did not have to go through a significant consultation process. 

Respondent closing remarks:

In closing, the Respondent representative stated that the Respondent had tried to act in good faith, that there was no clarity on the future but that there was a significant drop off in sales in the educational area and that there was no other option but to make a number of staff redundant, and this was based on a genuine financial decision. 

I have given careful consideration to the submissions and supporting documentation provided by both parties, together with witness evidence and representations on behalf of the parties at hearing.

CA 00 66905-001

The Complainant contended that he was unfairly dismissed by the Respondent and that the Respondent used redundancy as a ruse to remove him from the organisation. The Respondent denied the allegation and contended instead that the Complainant was made redundant, and that the redundancy was valid, necessary and fairly executed.

Redundancy arises where an employer’s requirement for the work that an employee is employed to do ceases or is diminished.  Section 7 (2) states that “an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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 employees 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 has been employed (or had been doing before his dismissal), should be hence forward 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 hence forward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

In considering this complaint it seems to me that the first question to be decided is whether or not a genuine redundancy situation existed.  In that regard I noted the Respondent submission that the company’s profitability had declined sharply between 2021 and 2023, incurring a €283,000 loss and that the education division underperformed by €770,000 during that time. I noted the Respondent position that unsuccessful primary publishing was a major contributing factor and the market disruption caused by the free schoolbook scheme and reduced government funding, further pressured the business model.

I also noted the Respondent outline of the context and rational for the redundancy which I summarise as follows:

·         In 2018 the company invested heavily in Core Primary Publishing, resulting in the recruitment of an additional 3 Sales Representatives and that it was anticipated this would result in increased revenue and profit.

·         By end of 2023, it was evident that the Education Division was not on target and was the main contributor to the Respondent making a significant loss in that year. 

·         Additionally, the new free schoolbook scheme, introduced by government in 2023, had changed the purchasing model in the school text book market and this resulted in the introduction of more book rental schemes.  In 2024 the funding was reduced by €16 per pupil at primary level and a combination of the rental schemes and a reducing grant, was anticipated to shrink the market over time

·         The Supervisory Board asked that a review of the Sales Team be done, with a view to consolidating and streamlining, in order to save costs and to ensure that the company remain competitive

The Respondent submission on these matters was confirmed in sworn evidence by Ms. Burns and Mr. Hyland at hearing.  I also noted that the details contained in the submission, the detail set out in Mr. BK’s letter responding to the Complainant’s appeal and the evidence given at hearing were consistent in relation to financial losses incurred.  I further noted the Respondent evidence that it not only reduced headcount through redundancy but through non replacement of leavers; and that it took other measures such as reduction in marketing spend, pay freezes etc, in order to improve the financial stability of the business.

I noted the Complainant evidence that he had no knowledge of the Respondent financial position and so he could not comment when asked if he accepted the Respondent position on this matter.

In all, I found the Respondent evidence and supporting documentation, to be compelling, and I accept that there was a genuine redundancy situation in the Respondent business.

The second question to be decided is if the Complainant was fairly selected for redundancy and whether or not the Respondent acted reasonably in the circumstances. 

In this regard I noted that there was no evidence of any established or agreed practice governing selection for redundancy and there was no provision in the employment contract in that regard.  I also noted that there were, in total 4 staff, made redundant and that the Respondent had a headcount of 90. 

The Act provides that a collective redundancy arises where in any consecutive period of 30 days, the number of employees dismissed on grounds of redundancy is:

·         At least 5 in an establishment normally employing more than 20 employees and less than 50 employees,

·         At least 20 in an establishment normally employing at least 50 employees and less than 100 employees.

Where there were only 4 redundancies out of a total of 90 employees it is clear that this does not constitute a collective redundancy as set out in the Act and the obligation of the Respondent in terms of procedural requirements is determined accordingly.

I noted the Respondent evidence that the following objective selection criteria was applied:

         i.            The impact any reduction of sales presence would have on achieving the organisation’s goals into the future

       ii.            The amount of change to existing territory, as in, limiting change to keep stability with the customer base

     iii.            The geographical coverage of the current team and where reallocation would have the least impact in terms of travel

     iv.            Territory size in terms of keeping any remaining territory manageable i.e. not too big for one sale representative to cover.

While upon initial examination, these criteria appear neutral and not person focused, upon closer inspection, it seems to me that this approach was not simply going to result in a number of positions that could be made redundant, it was also likely to lead to a scenario where posts held by specific individuals would be identified to be made redundant. 

The challenge posed in this regard could have been overcome if that criteria was made known to all employees who were at risk of selection for redundancy and had they been given the opportunity to make submissions as to why they should be amongst those retained.  It is common case that no staff were put on notice of a risk of redundancy and there was no opportunity for selected staff to engage or consult on any alternatives to redundancy.

I noted the Respondent position that they had hoped to meet the Complainant on Tuesday 25 June but that the meeting could not take place due to the Complainant being unwell and due to the fact that he would then be commencing holidays for the whole summer period.  The Respondent evidence was that the Complainant would remain unavailable throughout the Summer, and the Respondent needed to have arrangements in place for the new academic year.  In those circumstances the Respondent advised that it had no option but to issue the notice of termination of employment on the basis of redundancy.

I noted the Complainant evidence that he received the notice of the meeting for 25 June on 24 June while he was off sick with confirmed Covid.  In that context he did not see the email regarding the meeting on the day it was sent and so, the following morning his wife made a number of efforts and eventually made contact with the Respondent to confirm his illness and advised he would not be able to attend the meeting.  His wife was advised that he should check his emails, and he received the letter of termination later that day.

It is noteworthy that there was nothing in the first correspondence to give any indication to the Complainant that the purpose of the meeting was to discuss the termination of his employment, neither was there any reference to him having the opportunity for representation at that meeting.  I do not accept that this was the only opportunity for the Respondent to address this matter directly with the Complainant.  I found Mr. Hylands comments in relation to the Complainant’s illness at hearing to be disingenuous to say the least, particularly given the tone and good wishes contained in the letter of termination.  More importantly, the Complainant had an unambiguous clause contained in his contract, that provided for the summer period to be taken as annual leave, but which also placed a clear obligation on the Complainant to attend work if required.  In those circumstances, it was entirely possible, and indeed desirable, for the Respondent to have postponed the meeting to the following week.

In the absence of this meeting, I must conclude that, notwithstanding the fact that this was not a collective redundancy situation, the Complainant was never notified that his role was at risk of redundancy, he was not given advance notice of the criteria for selection for redundancy, he was not given any opportunity to engage with the Respondent to make alternative suggestions to being made redundant and to have those suggestions considered. 

In addition, the Complainant was not informed of his right to appeal, nor was he advised of how he might do so.  It is clear, based on the actions of the Respondent in the immediacy of the termination of employment and in their actions thereafter, that there was no intention to provide for an appeals mechanism.  I noted that the staff of the organisation were notified that the Complainant was gone, his access to all systems was shut down and his company car, phone etc were collected, and all within two days of the letter notifying him that his employment was terminated. 

I noted that an independent consultant was engaged to hear the Complainant’s appeal and while he made mention of the absence of a consultation process, the focus of his deliberations was on whether or not there was a genuine redundancy situation, and he found that there was.  However, the Respondent issued the redundancy payment to the Complainant’s bank account, in advance of the decision of the outcome of the appeal being issued.  This was the evidence of the Complainant and was supported by the relevant documentation. In these circumstances, I must conclude that the appeal process was intended by the Respondent to be a mere “tick box exercise”.

In relation to the question of consideration to alternative employment, the Respondent indicated at hearing that this matter was considered but provided no evidence to that effect.

In a case of Unfair Dismissal before the EAT (UD206/2011) the Tribunal stated that  “there was no worthwhile discussion in relation to the criteria used for selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should also consider other positions which the claimant is capable of doing.” 

In an appeal to the Labour Court of ADJ – 00001516 the Court commented on the manner in which the Appellant “executed the dismissal of the Respondent, engaged in the minimum of consultation and in effect put a decision rather than a proposal to the Respondent”.  It also noted that “that the Appellant made no avenue of appeal available to the Respondent in a situation where the Respondent was dissatisfied with the decision to terminate his employment with the Appellant”.

In this case, while the Court held there was a genuine redundancy it also found “that the manner of his dismissal as result was procedurally unfair. The Respondent was not consulted adequately, he was not afforded representation at the meeting on 27th October 2015, and he was denied the opportunity to engage with the Company Board when he requested that facility in a situation where he was not satisfied with the termination of his employment.” 

Similar to the above cases, the Complainant was not given any notice of risk of redundancy, was not consulted with in relation to the application of the selection criteria and was not afforded any opportunity to engage with the Respondents or offer possible alternatives to redundancy.  The Complainant was not offered a right of appeal and when ultimately one was provided at his request, the redundancy payment was issued to his bank account in advance of the decision of that appeal being issued to him.

In light of all of the above I have concluded that there was a genuine redundancy situation within the Respondent business but that the Respondent did not engage in a fair and transparent process in selecting the Complainant for redundancy.  In such circumstances, I find that the Complainant was unfairly dismissed and that his complaint was well founded.

CA 00 66905-002

The Complainant cannot advance a complaint of unfair dismissal and a claim in relation to redundancy arising from the same set of circumstances.  In circumstances where I have found that he was unfairly dismissed this complaint must fail.  I therefore find that this complaint is not well founded.

CA 00066905-003

The Complainant contended that he was not paid correctly for his annual leave as set out in his contract of employment and that he was not paid for expenses.  The Respondent contended that he was paid for all leave outstanding at the time of termination of his employment.

The Payment of Wages Act defines wages as “any sums payable to the employee by the employer in connection with his employment, including

Section 5(6) of the Act provides as follows:

5 ….(6) Where –

(a)    the total amount of any wages that are paid to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    none of the wages that are properly payable to an employee by an employer on any occasion (after making such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a

In relation to his claim for expenses, I noted that it was common case that the Complainant had not claimed his expenses for a number of years and that there was no claim outstanding.  I therefore find that the complaint in this regard is not well founded.

In relation to the complaint regarding payment for outstanding annual leave I noted Section 8 of the Complainant’s contract of employment which set out 2 separate provisions in relation to the Complainant’s annual leave.

In the first instance, the contract provided for an annual leave year running from 1st January to 31st December and provided for the following annual leave entitlement:

Years of Service                                Days of Leave

0-3 years                                                             22 days

4-6 years                                                             23 days

7-12 years                                                           25 days

13-20 years                                                        26 days

20 onwards                                                        27 days

The contract provided for holidays to be calculated on a pro rata basis for part-time workers and for working periods of less than a full year.

It was the Respondent position that the balance of annual leave outstanding at the time of termination of employment was first paid to the Complainant with the redundancy payment made.  It was also the Respondent position that when the Complainant returned that payment, it made separate payment for any outstanding annual leave from the above provision.  This was accepted by the Complainant at hearing.

In that context, I find that the Respondent has discharged it’s obligations in relation to the above contractual entitlement.

The contract of employment also provided that “As an Education Sales Representative, in addition to the above outlined annual leave entitlements, you are also entitled to take leave for the remaining duration of school holidays.”  While the contract made provision for employees attending work if required during this period, there were no other caveats attached to this leave.  In particular, there was no provision in contract setting out a minimum service requirement either before or after availing of such leave.  In that context I have concluded that the only requirement for an employee to avail of this leave is that they must be in employment during that specific period.

I noted that the school holiday period ran from 1 July to 23 August 2024 and that it was specifically for this leave period that the Complainant contended he was not paid.

The Complainant was notified on 25 June that he was being made redundant and that his employment would terminate on 6 August 2024. It is clear from the Complainant’s contract of employment that he was entitled to be paid for holidays from 1 July 2024 until his employment terminated on 6 August 2024. 

It is also clear that the Complainant was entitled to 6 weeks’ notice of termination of employment under the Minimum Notice and Terms of Employment Act and that in providing him with a letter of 25 June with a termination date of 6 August the Respondent gave the Complainant the required six weeks’ notice. An employer has the option to either give 6 weeks’ notice or payment in lieu thereof.  It is evident that the Respondent chose to provide the Complainant with 6 weeks’ notice, the fact that this coincided with the academic school holidays is not relevant. Had the Complainant had his employment terminated at a different time he would have continued to work for 6 weeks after receiving notice of termination of employment and would not have received additional payment for the notice period.

In such circumstances, I must conclude that this complaint is not well founded.

CA 00066905-001

I found that the Complainant was unfairly dismissed and that his complaint was well founded and I decide accordingly.

Redress/Remedy

Section 7(1) of the Act provides that where an employee is dismissed and the dismissal is an unfair dismissal, the employee is entitled to redress consisting of one of the following as deemed appropriate by the Adjudication Officer:

(a)    re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b)    re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)     payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17  of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.”

In deciding on the appropriate remedy, I must consider all options open to me under the Act.

In making this decision, I have regard to the findings of the Supreme Court in An Bord Banistiochta, Gaelscoil Moshiolog v The Labour Court, where it was stated that “the remedy of reinstatement is exceptional in nature, involving as it does the imposition of a contractual relationship which is not only personal, but involves a high level of mutual trust and confidence, on an unwilling party…. It is wrong to view reinstatement simply as punishment for wrongdoing on the part of the employer”

In light of the above, I am satisfied, based on the evidence presented to me, that the trust and confidence required for the resumption of an employment relationship between the parties no longer exists.  Additionally, on a practical level the Respondent has restructured its’ business and any re-instatement or re-engagement runs the risk of displacing other contractual arrangements in place.  From the Complainant’s viewpoint, he too has moved on and secured alternative employment and would not wish to return in the circumstances that applied to the termination of his employment.

Accordingly, I have decided to make an award of compensation.

The Complainant was employed by the Respondent earning €44125.00 in basic pay in addition to which he was included in the company pension scheme (loss of €1765 per annum), received commission bonus of €3967 per annum and had the use of a company car.  The Complainant drew attention to unvouched expenses of €8 per day but as he hadn’t made a claim in that regard for a number of years, I find I cannot take that into account.

He was dismissed on 6 August 2024 and took up employment with a new employer on 13 January 2025 on an annual salary of €30,000. This salary attracted none of the additional benefits which he enjoyed while working with the Respondent and he no longer had the use of a company car.  

In assessing financial loss arising from the dismissal, I have taken account of the significant impact of his dismissal within the confines of a niche sector and within a rural community and the potential impact of this on his ability to find alternative employment.  I am satisfied, based on the evidence of the Complainant, that he made significant efforts to mitigate his loss and that he had made application for multiple positions without success. 

I note that the Complainant was at a loss of salary from the time of his dismissal until he took up alternative employment of €22,562 and I note that he will incur losses into the future arising from the dismissal.

Having regard to all of the foregoing, I must conclude that an award of €60,000, represents a just and equitable measure of compensation and I direct the Respondent to compensate the Complainant accordingly.

CA 00066905-002

I found that this complaint is not well founded and I decide accordingly.

CA 00066905-003

I found that this complaint is not well founded and I decide accordingly.

Unfair dismissal, unfair selection for redundancy, payment of wages