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Employer’s Failure to Challenge Third Party Company’s Discontinued Need for its Employee Resulted in an Unfair Dismissal Finding

In Paul Atkinson v PFH Technology Group (ADJ-00047335), the Complainant brought a complaint to the Workplace Relations Commission (the “WRC”) under the Unfair Dismissals Act claiming that his redundancy was an unfair dismissal. The Adjudicator, Patsy Doyle, found that the Complainant was unfairly dismissed on a procedural ground and awarded the Complainant €17,831.39, the equivalent of 26 weeks’ pay.

Facts: The Complainant was employed by PFH Technology Group, an Information and Communications Technology Company from 5 June 2018 – 24 March 2023 as a Business Infrastructure Integrator. From October 2021, the Complainant worked a four-day week.

The Respondent placed the Complainant on the site of a different company, Company B, from his employment commencement date. The employment arrangement was described as a “Triangular employment” in which the Complainant was the subject of a Service Level Agreement (“SLA”). In November 2022, the Complainant was informed by a Services Director that his role would cease at the Company B site from December. The Respondent started a process to place the Complainant in another role at Company C, due to begin in January 2023. However, then it transpired that Company C did not require the Complainant to join as they did not have the clearance. On 19 January 2023, the Respondent put the Complainant at risk of redundancy while continuing to search for alternative roles. A two-week consultation process began on 8 February 2023 while continuing to search for redeployment opportunities. On 20 February the Complainant was placed on one month paid notice which would conclude with the Complainant’s role being made redundant if no internal role at the Respondent was secured by the Complainant.

A witness for the Respondent, Ms Carmel Holmes, gave evidence in relation to hiring staff for assignment. She gave evidence to say that an alternative role was anticipated for the Complainant in Company C, however the company did not proceed to hire. The witness outlined a number of roles that were explored for the Complainant but were not suitable for various reasons. She said the Complainant’s employment ended as there were no alternative roles or backfill available. Ms Susan Manning, Director of Human Resources, gave evidence on behalf of the Respondent to say that the Complainant never challenged the decision to make him redundant.

The Complainant submitted that he was unfairly dismissed from his role by letter dated 27 March 2023 due to alleged redundancy. The Complainant submitted that this was not  a genuine redundancy and was a misuse of the redundancy process. He said that redundancy was discussed before the option of alternative roles. Counsel stated that the Complainant’s role was advertised thereafter, and it would be illogical for an IT expert to be subject to redundancy and there was no inference of poor performance from the Complainant. Counsel pointed to a mobility clause in the Complainant’s contract of employment which was not followed. He pointed to a deficit in the Respondent’s obligation to advocate for the Complainant on the client site, which had not occurred.

Decision: The Adjudicator remarked that she would have preferred to have seen real time records around the cessation in November 2022 and found that the Complainant’s four-year employment record with the Respondent deserved better communication than what took place here.

The Adjudicator quoted from the decision of Charleton J in JVC Europe Ltd v Panisi [2011] IEHC 279. The Adjudicator found that in circumstances where the Respondent employees over 700 employees across the country, the approach that the Respondent took in triggering a redundancy where a SLA was cancelled to be “over simplistic and too radical”. The Adjudicator pointed out that in circumstances where the Complainant has 4.5 years of unbroken service in what is described as a fluid marketplace, a trial temporary layoff arrangement could have been attempted in this case. This also would have allowed the Complainant to apply for redundancy if he wished to move on. The Adjudicator found that once the SLA ceased, the Respondent moved too quicky and did not pay sufficient regard to the Complainant’s permanent status as an employee. Despite the attempts to scope out alternative roles, the Respondent did not exhaust all options available to them in circumstances where they did not follow the mobility clause in the Complainant’s contract of employment. The Adjudicator held that while this was not a “sham redundancy”, there were significant shortfalls in how the Respondent managed the cessation of the SLA and moved too hastily to make the Complainant redundant. In considering redress, the Adjudicator considered the Complainant’s financial loss, and found that there was a shortfall in his attempts to mitigate that loss. In light of the statutory redundancy payment, the Complainant was awarded €17,831.39 (26 weeks’ net pay) for this unfair dismissal.

Takeaway for employers: Employers who have employees in third party companies should be mindful that they are required to challenge, and prove that they did so challenge, a decision of the third party company who no longer needs their employee. It is not sufficient to just accept the third party company’s decision at face value. This decision suggests that the employer should have advocated for the employee. Furthermore, employers should consider putting the employee on temporary layoff before making them redundant, particularly where the business in question fluctuates. This decision once again illustrates the importance of having written records of the process that does occur.


Authors – Jane Holian and Anne O’Connell

24th June 2024

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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