Sherlock v Pluralsight 2023

10/10/24, 12:23 PM

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ADJ-00044941 - Workplace Relations Commission

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ADJ-00044941

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ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044941

Parties:

Complainant

Respondent

Parties

Gráinne Sherlock

Pluralsight Ireland Ltd

Representatives

McInnes Dunne Murphy LLP

Niamh McGowan BL instructed by A&L Goodbody LLP

Complaint:

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-00055656001

22/03/2023

Date of Adjudication Hearing: 14/12/2023 & 13/03/2024

Workplace Relations Commission Adjudication Officer: Kara Turner

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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Procedure: On 22 March 2023, the complainant referred a claim for redress for unfair dismissal to the Workplace Relations Commission. In accordance with section 8 of the Unfair Dismissals Acts 1977 – 2015, following the referral of the claim to me by the Director General, I inquired into the claim and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the claim.

I heard this case over two days in Lansdowne House. Ms Grainne Sherlock (the “complainant”) was represented by Mr Ciaran Ahern of McInnes Dunne Murphy LLP and Pluralsight Ireland Ltd (the “respondent”) was represented by Ms Niamh McGowan BL instructed by Mr Bernard Martin of A&L Goodbody LLP. Two of the respondent’s witnesses attended the hearing in Lansdowne House and another gave evidence on the first hearing day via remote link.

I received written submissions and supporting documentation on behalf of both parties prior to the hearing. I requested post-hearing submissions from the parties on matters relating to financial loss. There was an exchange of post-hearing submissions; submissions dated 22 March 2024 and 26 April 2024 were received on behalf of the complainant, and submissions dated 12 April 2024 were received on behalf of the respondent. 0

In coming to my decision, I have taken account of the evidence tendered, the oral and written submissions of the parties, and the relevant documentation before me.

I have considered a request that the respondent’s witnesses not be named in my decision however there were no special circumstances advanced for so doing and the hearings were held in public. A similar request was made in relation to former colleagues of the complainant who were named by the complainant in the complaint form. These persons did not participate in the hearing and did not feature in an individual or material way in the evidence tendered, and in such circumstances they are not referred to by name in this decision.

Background:

The complainant was employed with the respondent from June 2019 until the termination of her employment on 10 February 2023.

It was the respondent’s case that the complainant’s employment terminated on grounds of redundancy following a fair and reasonable selection process and extensive consultation process.

The complainant claimed she had been unfairly selected for redundancy, that the redundancy had been predetermined and lacked procedural fairness.

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Summary of Complainant’s Case:

The complainant’s selection for redundancy was unfair and followed a pre-determined selection process.

The decision to make the complainant’s role redundant was based on a selection proposition that was contrived and manipulated to ensure the complainant was selected for redundancy from a pool of comparators.

The complainant commenced employment working on the UK/Ireland Commercial team in Dublin. The complainant was successful in April 2021 in her application for a global management role on a new Digital Sales SMB team (the “SMB team”). The complainant was promoted from senior manager to Director on the SMB team in April 2022.

During 2022, there was some disquiet between the Dublin Commercial team and the SMB team regarding attribution of deals. The complainant often felt ignored and omitted from the culture in the Dublin office.

In December 2022, it was announced that the complainant’s role and the European-based SMB teams would be regionalised so that they would fall under the Dublin Commercial team. At that point, the complainant was advised that only 5 of the existing 8 leadership roles on the combined team would be retained for 2023.

The complainant asserted she was unfairly selected for redundancy and that there was no consultation or transparency around the criteria for selection for redundancy. It was submitted that the 80:20 weighting between interview and past performance was put in place to ensure the right candidates were retained by 0 the respondent, namely those who had been hired by and were already working for the Senior VP Commercial Sales EMEA. The decision to make the complainant’s role redundant was on foot of a highly subjective selection process where the decision-maker demonstrated bias, and the complainant’s selection was predetermined from the outset.

There was no feedback from the interviews, and it was not clear that all candidates had been asked the same questions. The complainant was not told how she had ranked in the process. There was no scope to revisit the selection decision during the consultation process. The interviews themselves were fatally flawed; the complainant assumed she was applying for a leadership role for SMB; it had not been made clear to her that she was applying for all 5 roles. There was no involvement of HR in the interviews and no accountability or transparency around the interview process. Little effort was made to seek alternatives to redundancy for the complainant.

The complainant made significant efforts to find new work. Her financial loss was ongoing on the dates of the hearings.

Summary of complainant’s sworn evidence The complainant worked in 3 different roles over the course of her employment with the respondent. She commenced employment as an Account Executive on the UK/Ireland Commercial team in 2019, was promoted to a global management role on a new Digital Sales SMB team in April 2021, and was further promoted to a Director role on the team in April 2022.

The digital sales model was a new digital marketing concept using online means to nurture leads which would then be taken over by the sales team in the more typical or traditional sales manner. The Digital Sales SMB team was paid on a group commission meaning that if the team performs, all members of the team would benefit. However, each team member also had an individual target to ensure that all members of the team were performing and to ensure a fair and equitable environment. Sales forecasting on the SMB team was ultimately done by the complainant’s boss, who was Head of Digital Sales SMB, but the complainant and team members would feed into forecasting. Performance was measured quite closely, and any performance issues were highlighted. The witness gave examples of how she had addressed performance issues with team members when they arose and outlined how she monitored team members’ performance alongside the head of the team.

The witness was asked about issues in the Dublin office. She referred to undertaking in March 2022 an analysis of sales to ensure that deals were attributed correctly and how, of 1,000 deals analysed, 3 deals ought to have been attributed to the Commercial team. This was fed back by her boss to Mr Wynne.

The complainant felt excluded and ignored by Mr Wynne in the Dublin office and referred, by way of example, to being blanked by him and how she and another SMB leader were excluded from a dinner for Dublin-based leaders to meet with the newly appointed general manager of the respondent organisation when he visited the Dublin office.

The complainant had heard rumours about potential changes a week before a meeting with Mr Wynne on 12 December 2022 during which he informed staff that the headcount in the Commercial function would reduce from 48 to 30 and that SMB would remain at 11, but that the leaders aligned to the Commercial and SMB team would reduce to 5. The impacted leaders were informed by Mr Wynne of the interview process and provided questions that would be asked at interview. The complainant had not believed she would be successful in the process because she had never been successful in getting promoted on Mr Wynne’s team. She believed there to be an inner circle in the Commercial function. The complainant assumed she would be interviewing for the SMB role. Had she known what role she was applying for, she would have prepared for and done the interview differently. She had anticipated the questions that would be asked from the sample provided. There wasn’t an opportunity to feedback on the questions before interview. https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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After the interview process, the complainant was informed she had been unsuccessful, was at risk of redundancy, and of the commencement of the consultation process. During the consultation process, the complainant raised concerns about the interview process, including the questions asked and the nonretention of high performers. The complainant did not feel listened to; the process was referred to rather than reasons or answers to her questions being provided. The complainant knew her salary was a significant cost to the company, and she knew the process was a cost-cutting exercise. The complainant did not believe that there was any chance of the decision being reversed during the consultation process.

The complainant did not see any suitable roles available for her in the commercial operations. She outlined opportunities of interest to her within the respondent organisation and one in particular, a Divesity, Equality & Inclusion (“DEI”) role that she applied for and then her access to the IT system was cut off. Without her single sign-on to the IT system, the complainant could no longer access available jobs and the respondent’s internal messaging channel. The complainant had asked Ms Van Horn to extend the time for the consultation process. The complainant ultimately did not get the internal role, and received no feedback on her application for same. During the complainant’s garden leave, she had no access to the respondent’s systems and received just one email from the recruitment team. The complainant was not in a position to actively look for other roles in the respondent organisation herself as her access had been cut-off. The complainant tried to appeal the outcome through the consultation process.

Since the termination of her employment with the respondent, the complainant has applied for jobs on a daily basis. She has done a number of interviews, some of which had progressed to the last round. The complainant worked with a medical device company for a 3-month period however this did not continue beyond the probationary period. The complainant also undertook exam invigilation work in December 2023.

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Cross-examination The complainant accepted that she did not raise any formal complaint in employment regarding the stealing deals issue. The complainant took a different approach to dealing with any performance issues on the part of her reports in 2022. It was put to the complainant that the dinner she asserted exclusion from

by Mr Wynne was in fact a dinner to which leaders above a certain level on the Commercial team were invited and that it was not Mr Wynne’s dinner. The complainant asked for a direct meeting with the general manager when he was in Dublin but he did not arrange to meet with the complainant. The complainant was asked about her assertion that Mr Wynne was biased against her when in her direct evidence she had referred to her selection being about her costing the respondent money. The complainant’s response was that for a time in her employment, Mr Wynne was biased against her. The complainant referred to the redundancy process and stated that it was clear from the questions asked that they were tailored for the SMB leaders to fail because of the rhetoric that they didn’t forecast, there wasn’t outbound motion and the team didn’t have individual targets. The questions asked clarified the complainant’s thoughts on the process. The complainant thought she should have scored over the marks awarded to her at interview. The complainant was asked about the scoring coming down to how she performed at interview; the complainant referred to the forecasting question and, in her view, the very poor score given how she responded to the question at interview.

The complainant accepted that she had never lodged a formal grievance against Mr Wynne. The complainant did not dispute that Mr Wynne was never on the recruitment panel for any of the promotional opportunities the complainant applied for when on Mr Wynne’s team.

The complainant was asked about the information provided in advance of the interview process and her direct evidence that she had assumed she was applying for the SMB leader role. The complainant referred to an organisational chart shown by Mr Wynne, which had identified five roles. She agreed with the evidence of Ms Santos that the competencies for the 5 leader roles were the same however maintained that each of the areas to which the leaders were ultimately appointed warranted taking a different approach in terms of interview preparation had the complainant know the specifics of the role. It was a 40-minute interview that did not allow for demonstration of the competencies for each specific area. In advance of the interviews, the complainant was aware of 6 questions that were going to be asked and that there would be other questions. The complainant accepted that she had attributed a false assumption to the interviewers. The complainant did not raise any issue or provide any feedback on the questions that she was told would be asked. The complainant accepted that it was very difficult therefore for the respondent to understand the complainant’s issue with the questions if she hadn’t said so. The respondent’s assumptions about the complainant and the SMB’s team experience of inbound and outbound motion and team and individual targets were incorrect. The complainant had not been aware that the competencies being tested at interview were for the roles going forward. The complainant accepted that the questions asked of the complainant and the feedback on the interview record were factually correct.

The complainant would have benefitted had there been a greater weight put on the past performance aspect of the selection matrix. The complainant agreed that she would have been happy with a selection matrix of 80% attributable to past performance and 20% attributable to competency. She also accepted that redundancy should not be personalised so as to be based on an individual’s performance.

The complainant raised two questions during the consultation process about scoring. The complainant felt the consultation process should have been more akin to a performance review process whereby there would be agreement as to the scoring of the interview. The consultation process was about trying to save her job; it was not like a standard interview process where there might not be feedback on interview scores.

It was put to the complainant that there was no basis for the assertions she had made about Mr Wynne having a vendetta against her. The complainant distinguished the positive things said about her at hearing and his support for her application for the DEI role as being inconsistent with how she was treated in the https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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workplace; Mr Wynne was a strong advocate for her after the decision that she wasn’t to be retained. It was the complainant’s belief and experience that this would have been a problem fixed for him.

The complainant did not accept that the process was as fair and objective as it could have been.

The complainant was asked about her efforts to mitigate and where and how she had applied for jobs.

The parameters of the complainant’s search for employment were for roles at the same level to that which she had held with the respondent, or for enterprise/strategic roles at a similar level to where she had been before she joined the respondent. The complainant secured permanent employment as Sales Manager EMEA with another employer on 30 May 2023, she was promoted with this company after a month to Global Sales Manager. Her employment with this employer had a base salary of €130,000 plus 5% commission, which was substantially more than what the complainant had been on with the respondent.

The complainant did not remain in this employment beyond the probationary period. In total, it was a 15week period of employment.

Re-examination The complainant has always been involved in sales forecasting, including in her role as Director of Digital Sales SMB. The complainant was not invited to make objections to the questions asked at interview. She was not provided with a job description for the roles before the interview. She has never before interviewed for 5 roles at once.

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https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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Summary of Respondent’s Case:

The respondent is an online education company that provides training courses through its website.

The complainant commenced employment with the respondent on 3 June 2019 as Commercial Account Executive based in Dublin. The complainant was appointed to a leader role in 2021 with responsibility for a new Digital Sales Small and Medium Business (“SMB”) team and further promoted in 2022 to Director on that team.

In or around December 2022, the respondent announced a global reduction in its workforce due to company performance, uncertainty across the global economy and its focus on preparing the company for future growth. The estimated impact was approximately 20% of the respondent’s workforce. Eight managers in the Commercial and SMB function, which included the complainant, were impacted by the decision to reduce headcount. The impacted employees were informed by their manager, the Senior Vice President of Commercial Sales EMEA, that their roles were at risk of redundancy on 12 December 2022 and that there would be 5 positions remaining at the end of the process.

The redundancy selection process was based on past performance and a competency-based interview.

Following the interviews, 3 employees, which included the complainant, were identified as being at specific risk of redundancy. There were consultation meetings between the complainant and her manager, and assistance provided to the complainant insofar as possible in efforts to find alternative employment within the respondent. The complainant’s manager, against whom the complainant made a range of allegations including bias and hostility, had supported the complainant in her efforts to find alternative employment within the respondent organisation. Regrettably, an alternative suitable role could not be secured for the complainant and the complainant was notified at a meeting in January 2023 that her employment with the respondent would terminate. The complainant received all her contractual entitlements and her statutory redundancy entitlement on the termination of her employment on 10 February 2023.

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The complainant was given an opportunity to appeal the decision to make her role redundant but did not do so.

The respondent faced significant economic challenges in 2022 that necessitated a reduction in workforce numbers. Its decision to carry on its business with fewer employees meets the definition of redundancy as set out in section 7(2)(c) of the Redundancy Payments Act 1967. Its redundancy process was legitimate, and its selection criteria were objectively reasonable and fairly applied across all 8 candidates. The respondent did not accept the bias alleged by the complainant. There was a restructure of the complainant’s team with a reduction in the number of leaders from 8 to 5. The selection process involved a combination of marks from a competency-based interview (80%) and a review of past performance (20%). Given the requirement for impersonality in a redundancy situation, a greater weighting for past performance would not have been appropriate. The 5 leadership roles were sales management leadership roles with common competencies.

It was submitted that the height of the complainant’s case is that the complainant felt the outcome of the redundancy process had been pre-determined; there was no evidence to support this. The evidence tendered by the respondent of the complainant’s role in the business was very positive in nature and indicated support for the complainant. The involvement of two interviewers in the selection process upsets the complainant’s assertions of bias. It is not for an adjudication officer in an unfair dismissal claim to substitute their views with those of the persons who carried out the selection interviews.

The respondent fully disputed the unfair dismissal claim and submitted the complainant’s dismissal was substantially and procedurally fair.

Summary of sworn evidence of Amber van Horn (Senior VP People Business Partners) The witness is Senior Vice President Global People Partners with responsibility for organisational design, restructuring and employer / employee relations.

In December 2022, the team was global, and it was the role of the witness to oversee and lead teams on the restructuring impact. Two members of the witness’ team directly dealt with Mark Wynne over the Dublin restructuring.

The difficult decision had been taken to restructure with a 20% reduction in headcount due to economic downturn which had affected the organisation’s performance, and to sustain long-term viability of the company. There were 254 people impacted in the US and 9 in Ireland. Team members across every department globally were impacted by the restructuring event. There was no pre-determined fixed number for the reduction in headcount in Dublin. The witness did not make the decision to reduce leaders on the Commercial/SMB team from 8 to 5.

The witness described the SMB function as a largely digital inbound motion with sales provided to the SMB team to close. It had commenced as a pilot function in 2021 and moved to full motion in 2022. The performance of SMB team members was measured on team targets, which was different from the general position in Sales where each team member had an individual target in the territory they covered. The witness had no involvement in who was put at risk of, or selected for, redundancy in Ireland. The witness was unaware of a toxic environment in Dublin and had no knowledge of tensions between teams in relation to stealing deals. The first the witness had heard about Mr Wynne being unhappy with the SMB team or of stealing deals was the week before the hearing at the WRC. The complainant’s boss never raised any such issues with the witness, and the witness was unaware of any concerns raised by the complainant. There were 2 people ultimately made redundant in Ireland.

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The witness did not receive from the complainant an appeal of the decision. The witness did not recall and had no record of receiving an email exchange where the complainant expressed a wish to extend the consultation process. There was no purpose to extending the consultation process as the decision had already been made. Even had the witness received an email from the complainant requesting for the consultation period to be extended, it would not have made a difference.

Company practice when someone’s employment is terminated is to shut down access to company IT systems for security purposes however all employees continue to have access to Workday for up to a year after termination. Workday is where personal information resides and where all internal jobs are posted.

An employee can access Workday from their personal email.

At the time of the consultation process, there were no vacancies at the complainant’s level in Ireland or globally; this wasn’t surprising given the climate. The witness was aware the complainant had engaged in an application process for a US position but was not involved in that process.

Under cross-examination, the witness was asked about team targets; she was not aware of other teams having team targets. She outlined how Mr Wynne’s team members had an individual quota and territory, and how the team had an overall revenue number they were expected to hit. The witness did not work with the complainant. She confirmed that she was the designated person to receive emails in relation to an appeal. She did not enquire after 9 January 2023 about whether an appeal had been received. The witness was asked about an email from her team member which included the witness to emails from the complainant requesting an extension of the consultation process. The witness did receive the email from the team member but did not receive an email from the complainant. The complainant’s request was to extend the consultation process while she was in the process of applying for the DEI role. The witness and the relevant team member did discuss the complainant’s request for an extension. A decision was taken 0 not to extend because the conclusion date of the process did not impact on the complainant’s application process for the DEI role or access to Workday. The complainant could continue with any internal application process for roles regardless of whether or not she had access to company IT systems. The witness did not reply to the complainant on the extension request. The option to appeal was clear; there was no flexibility around that.

In re-examination, the witness confirmed she had a working relationship with Mr Wynne and the complainant’s boss. She could not say how frequently the complainant’s boss attended the Dublin office.

Summary of sworn evidence of Mr Mark Wynne (Senior VP Sales EMEA ) The witness is Senior Vice President for Sales EMEA with responsibility for all of the commercial sales teams. He joined the respondent almost 6 years ago and had responsibility for the complainant in the Commercial function until she moved to report to one of his leaders.

The witness had very good feelings towards the complainant; he celebrated her success and how she developed in the respondent organisation.

He described as logistically impossible any accusation that the SMB team were stealing sales leads from Commercial because the Sales Operations team split the accounts at the beginning of the year. Any dispute about account ownership or who an account rested with would be referred to the Sales Operations team for adjudication. The witness acknowledged that a point of discussion at management meetings was in relation to SMB thresholds but that even if this was an issue, it was not one that would have been aimed at the complainant. Neither the complainant or her reporting manager raised any issue regarding exclusion of the complainant. The witness first became aware of the assertion of animus on his part against the complainant when he read the written submissions before the Workplace Relations Commission. To his knowledge, the complainant had never made a complaint about him.

The respondent’s Vice President, Head of People Strategy and Operations, advised of a global reduction in workforce in or around 12 December 2022.

The witness was informed by Finance and Sales Operations of the decision to reduce from 8 to 5 leaders on the Commercial/SMB team.

In relation to the restructuring exercise, the witness had 8 leaders reporting to him, which included the complainant from December 2022. In the restructuring, the number of leaders was to reduce to 5. A greater span of control was required in that more people would be reporting to one leader; where previously it had been 5/7 reports, this would move to 13 reports in the restructure. The previous team leader roles would no longer exist and there would be 5 new roles, having regard to cost, span of control and maintenance of similar motions. A decision was taken for SMB to become more outbound focused, meaning there would be a requirement to source and close sales leads. Currently, SMB is a mix of inbound and outbound sales.

The witness made calls to team leaders to inform them that this was happening and then followed up by email on 12 December 2022. He telephoned the complainant who was on leave at the time. On the call, he informed the complainant about the interview process and the 80:20 weighting in the selection process. None of the eight leaders opted out of the redundancy selection process in favour of the redundancy package that was on offer. The witness and Ms Santos conducted and determined the outcome of the interviews. They both had equal scoring rights in the interview process and submitted feedback, independently of each other and confidentially, on the questions asked. There were 16 preprepared questions on competencies relating to the 5 roles. The same 9 of the 16 questions were asked of all candidates, the other 7 questions were not asked. Each of the questions were linked to a competency in the new role. In relation to the transcript and scoring of the complainant’s interview, the narrative of the complainant’s answers was a combination of both interviewers’ comments or feedback, and the score is the combined score. https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

The witness saw the combined score after Ms Santos confirmed she 7/16

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had made her submissions on the interview. This combined document was provided to the complainant by way of feedback. Individual scores were not shared but were auditable via the input source. The questions asked at interview were developed in consultation with Sales Operations and HR and set in advance of the interviews. The interviewees would never be consulted about the questions that were going to be asked. Former managers were not consulted during the interview process, it came down to how the interviewees presented their own competencies. The witness did not consider it appropriate to consult the complainant’s previous manager. It was not about the complainant’s performance. The complainant scored full marks on the performance aspect. There were leaders in the process who did not score full marks on their performance. The witness did not accept that the selection process had been tailored to suit the candidates he wished to retain. Candidates who were poorer performers than the complainant or who did not perform as well in achieving targets were scored appropriately. The complainant’s team achieved 111% of its 2022 target and the complainant got a full score for this.

In relation to the 80:20 weighting in the selection process, the witness explained it was not possible to make a like-for-like performance comparison between the SMB and Commercial functions. It was therefore more important that competencies for the roles be given an 80% weighting. All the candidates were provided with the same level of transparency and the opportunity to demonstrate the competencies.

The scores of other candidates were not shared because of GDPR. The witness disputed saying to the complainant when her redundancy was confirmed that if he had one more role, it would have been hers.

Following the interviews, it was confirmed to the complainant on 16 December 2022 that her role was still at risk. An at-risk of redundancy letter issued on 16 December 2022 to the 3 employees who did not meet the top 5 ranking. The purpose of the letter was to initiate consultation with the complainant to see if there was any other role in the respondent organisation that might be suitable. The witness conducted the consultation meetings based on scripts given by HR. There were not many available potential roles.

0 At a consultation meeting on 21 December 2022, there was discussion with the complainant about the type of role she wanted to achieve.

The SMB team had been a global team, but it had been announced in December 2022 that from the beginning of 2023 it would be regionalised and fall under the witness’ responsibility/Commercial EMEA. This was part of the reason for the 8 leader roles becoming 5. A small selection of sales representative level roles, as opposed to leadership roles, were put to the complainant during the consultation process.

Ultimately 2 leaders were made redundant; 1 leader took up a sales representative role that had been advertised internally. There was no intention to insult the complainant by referring to sales representative roles during the consultation process. The witness acknowledged that it would be a big change for the complainant and that only she could make the decision on it. She could have applied for the roles and, if successful, worked her way up to any promotional opportunities. The witness had been delighted to hear about the complainant’s interest in a DEI role that had been advertised. He thought the complainant would be a great fit for it and he wanted to ensure the complainant would be considered for it therefore he messaged the hiring manager requesting that strong consideration be given to the complainant for the role. The witness let the complainant know that he had reached out to the hiring manager, and the complainant expressed her appreciation for this. The witness was crestfallen when he received an email from the hiring manager which advised they were not moving forward with the complainant’s application for the role. The witness had the final consultation meeting with the complainant on 9 January 2023, at which the termination of her employment was confirmed. The meeting, which was a remote meeting, was the conclusion of the process and the complainant went on garden leave thereafter. There was no interaction between the witness and the complainant during the garden leave period. The complainant had not given him any indication that she intended to appeal the decision. The witness did not have any communication with the complainant about the outcome of the DEI role process. The witness was not privy to the decision taken by People Partners on the complainant’s request for an extension of the consultation process timeframe.

The complainant had only expressed an interest in 2 roles during the consultation process; a US-based role and the DEI role. The witness was not party to the decision not to sponsor the complainant for the US role.

The witness took exception to the submission that the redundancy process was open to and was in fact manipulated. The respondent has worked through the process before; it is all auditable. There were 5 new roles requiring certain competencies and people were assessed against those competencies. The witness considered the meetings to have been well-managed and cordial. The submission on behalf of the complainant is very different to his experience of the process and the minutes of meetings. The process was very difficult for all involved. Of the 8 leaders, they had all been on the witness’ team at some point and of the 3 leaders confirmed at risk, 1 was from the Commercial function and 2 were from SMB. The witness made contact with the complainant’s manager after the interviews to give him notice about the outcome for the complainant. This was his last communication with the complainant’s manager about the decision/process as that manager finished up with the respondent shortly after. The witness had not consulted with the manager about the target statistics, and this would not have made any difference as the witness had given both SMB candidates the full score on this aspect of the selection process.

Cross-examination The witness did not accept there was a dispute in relation to sales or deals being incorrectly assigned to SMB or an issue in relation to “stealing deals”. There was a discussion that deals or opportunities may be at incorrect levels but there was no dispute; had this been the case, it would have been escalated to Sales Operations.

The witness did not accept the complainant’s sense that her team was excluded. The witness referred to there being many leaders across the organisation and if someone requests a meeting with his team leaders, he will comply with that. https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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The selection criteria of 80:20 was chosen by the witness in consultation with Operations and HR but it had been a split used previously in promotional leader interviews. The witness could not say with certainty that it had been used previously as a selection matrix for redundancies.

The questions asked at the interview had been prepared for use previously by Sales Operations and HR and were based on the competencies of the leadership roles.

The employees at risk did not have an opportunity to feedback on the questions proposed to be asked.

The interview process did not involve background, education or skills checks. This aspect of the process was purely related to competency; references would have distorted the process.

In terms of his preparation for the interviews, the witness met with Ms Santos to discuss the process.

There were 8 leaders to be interviewed for 4 Commercial roles and 1 SMB role. These were new roles, the previous roles did not exist. The 8 leaders were being interviewed for the new positions; the competencies applied to all 5 roles and there was potential for the complainant to be appointed to any of the 5 roles.

The witness was asked about the complainant’s scores on the interviews questions and confirmed there were no other notes of the interview other than the document furnished. The witness confirmed the complainant was not provided with the scores of the other employees interviewed. He further confirmed that following the interview process, the 5 persons who were to be retained had been on his team. This did not give the witness cause for concern as he was confident in the process that had been run. The witness had worked with all 8 candidates at some point and accepted he had worked more closely with some over the complainant. The witness did not accept that he unwittingly or unconsciously took this into account in the selection process and he did not accept that he implemented a selection process that 0 allowed him to keep the people he wanted to keep.

The witness considered the consultation process to have been an opportunity for the complainant to secure another role and not be made redundant. The consultation process was not about changing the outcome of the selection process or interview scores. It was accepted that the selection criteria were chosen without consultation with those impacted or the opportunity for feedback.

The complainant did not expressly appeal the decision to make her redundant. The witness did not tell the complainant to appeal the decision. There have been no vacancies since the termination of the complainant’s employment that the witness might have suggested the complainant apply for.

The witness did not accept that the interview questions were difficult to prepare for without a job specification.

Re-examination The witness confirmed that the role of Digital SMB leader was not one of the new roles. He had never had meetings excluding the complainant. The 5 retained leaders all report to the witness.

The witness responded to the complainant’s queries about the selection process during the consultation process.

The witness was under no obligation to reach out to the hiring manager for the DEI role.

Summary of sworn evidence of Ms Cris Santos (VP Revenue Strategy & Operations) In her role as Vice President Revenue Strategy & Operations, the witness was deeply involved in the redundancy process alongside HR and Finance. She had been involved in previous restructures and redundancies that had occurred within the respondent organisation. This process in which the complainant was made redundant was no different from previous restructures however this redundancy process was bigger as it was on a global scale. As the most senior team member of her department in Europe, she has always participated in panel interviews when it comes to sales management jobs. The witness did not report to Mr Wynne. In the hierarchical structure of the company, the witness was one level above Mr Wynne and her department was completely independent of Mr Wynne’s. The witness had been on work-related committees, but did not work directly, with the complainant.

Prior to the restructure, a decision had been taken to align the SMB team with the rest of the company.

It was up to the witness’ department to determine headcount by region. Not only did the team undergo a restructure, but the scope of the roles was also restructured; sellers were to become more outbound in sales motion along with a change in managerial responsibility. The roles were new roles and different to what individuals had been doing previously.

The 80:20 matrix had been used by the respondent in previous processes. The questions asked of the interviewees were taken from a bank of questions the witness’ department uses for sales management roles. What was being assessed at interview was the manager’s ability to forecast accurately, run a rigorous process with the team and hit the number that is put in front of them.

The witness and Mr Wynne conducted the interviews in the redundancy process; the exact same set of questions were asked of each candidate, Mr Wynne and the witness scored the candidates independently of each other and input their respective scores on their own google form and submitted these to HR. The witness did not meet with Mr Wynne during the process, she met with him once they had finished scoring.

The witness did not review the final scorecards and did not have an input into the performance/attainment score.

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

ADJ-00044941 - Workplace Relations Commission

The 20% weighting in the process allocated to performance was readily identifiable and objective. There was no need to speak with other personnel about an individual’s performance as this would have delayed the process and made it more subjective.

Asked about the complainant’s allegation that the process was biased and selection pre-determined, the witness responded that she was completely objective and only assessed what was in front of her. She did not experience or witness in the interview process any difficulties between the complainant and Mr Wynne and had no direct knowledge of any issues between the two or between the SMB and Commercial teams prior to the process. In terms of the process itself, it is completely unbiased. The same weighting applies and the same pool of questions are asked. The only difference is that the persons involved in the process change. The witness had no idea what the ranking of the interviewees following the interviews looked like. She input her scores and notes on Google docs, which are completely auditable, and the final result was sent straight to HR. The witness explained her comments and score sheet on the record of the complainant’s interview.

The witness outlined the normal procedure with employees on garden leave is that their IT connection is disconnected for security reasons, and access to customer management portals is removed.

Under cross-examination, the witness did not recall directly being involved in the decision to follow the 80:20 matrix for this selection process. The witness confirmed the complainant had scored full marks for the performance criteria and further that, in sales, looking at the numbers was the best way to assess and determine the performance score. Asked about the roles the candidates were interviewing for, the witness replied that the roles were 5 new roles and that the interviews were held for the purpose of selecting persons to be retained in the reduced number of roles. The witness was not involved in preparing job descriptions for the roles in advance of the interviews. What she knew in advance was that the interview was for a sales manager role involving individual targets and reduced budgets. The witness confirmed that the detail of the 5 new roles was not provided to the candidates in advance of interview as the detail

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was not known at that stage. The candidates were interviewing for sales management jobs which have core and universal competencies, and which are applicable to whatever the role ultimately appointed to, whether managing SMB or some other team.

The witness had contributed to the bank of questions, for example those on forecasting and operational rigour, but did not select the questions to be asked at interview. The witness knew the other candidates on the same basis as she knew the complainant. None of the candidates worked on the witness’ team.

The witness did not look at previous performance reviews of the candidates but she did have access to, and checked, their CVs. The witness met with Mr Wynne and a member of HR beforehand about the interview process, including who would be interviewed and was informed the questions to be asked. There was no comment made about any of the individual candidates for interview. After completion of the interviews, it was not the role of the witness to review the scores the candidates got. She did not share preliminary scores with candidates before finalising them and she did not verify or validate the answers at interview. The witness would not have changed her scores subsequent to interview, no matter what someone said after the process, whether by consultation or sharing of the interview record.

In re-examination, the witness said that scores and comments of interviewers are never shared or discussed with candidates after interview.

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

ADJ-00044941 - Workplace Relations Commission

Findings and Conclusions:

The Legal Framework Section 6(1) of the Unfair Dismissals Act 1977, as amended, (the “1977 Act”) deems a dismissal to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Without prejudice to the generality of section 6(1), section 6(4)(c) of the 1977 Act deems for the purposes of the Act a dismissal resulting wholly or mainly from redundancy of the employee not to be an unfair dismissal.

Redundancy is defined in section 7(2) of the Redundancy Payments Acts 1967 to 2014, as amended, as follows:“… an employee who is dismissed shall be taken to have been 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 9 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 he was so employed have ceased or diminished or are expected to cease or diminish, or

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(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 henceforth 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 henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The 1977 Act also makes express provision in relation to selection for redundancy where the circumstances constituting the redundancy apply to one or more employees. In this regard, section 6(3) of the 1977 Act provides:“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either— (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure. then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

It was submitted on behalf of the respondent that the respondent’s decision fell squarely within the definition of redundancy in section 7(2)(c) of the Redundancy Payments Act 1967 and is therefore not an unfair dismissal in accordance with section 6(4)(c) of the 1977 Act. It is well-established that the burden of proof rests on the respondent to demonstrate that the termination of employment resulted wholly or mainly from redundancy. In a case such as this, where the complainant’s selection for redundancy is in issue, the respondent also bears the burden of demonstrating that the complainant was fairly selected for redundancy.

My adjudication is concerned with the reasonableness of the respondent’s decision to terminate the complainant’s employment on grounds of redundancy.

A genuine redundancy situation https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

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The respondent relied on section 7(2)(c) of the 1967 Act; that a decision had been taken to carry on the business with fewer employees.

The respondent took the decision to make a global reduction in workforce of approximately 20% having regard to company performance and to ensure long-term viability. In consequence of this decision, it was further decided to reduce the number of leaders aligned to the Commercial/SMB function in Dublin in 2023. The relevant numbers are a reduction in leaders from 8 to 5; the complainant was included in this cohort of 8 leaders.

Revenue, Sales & Operations determined headcount by region, and it was Mr Wynne’s evidence that he was informed by this department of the decision to reduce the number of leaders on the Commercial/SMB team. Two employees in Dublin were ultimately made redundant on foot of the global reduction in headcount, one of whom was the complainant.

The decisions to reduce headcount and the number of leaders were not materially challenged by the complainant in its presentation of its case.

I have very carefully considered in this case the impersonality aspect of section 7(2) of the 1967 in the context of the evidence before me, and in particular the fact that the complainant’s role had just been aligned to the impacted leadership group prior to that group being informed it was at risk of redundancy, and the manner in which employees in that group were selected for the new roles or to remain at risk of redundancy. On balance however, I accept the mostly undisputed evidence of a global reduction in headcount and consequent restructuring of the leadership roles on the Commercial/SMB team in Dublin as constituting a redundancy situation within the scope of section 7(2)(c) of the 1967 Act. The complainant’s selection for redundancy

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The complainant had reported into the US until December 2022 when she was informed her role would be regionalised and fall under the Commercial team reporting to Mr Wynne, Senior VP Sales EMEA, in Dublin.

On 12 December 2022, the complainant was informed that her role was at risk of redundancy and that 5 of the 8 leaders on the amalgamated Commercial/SMB team would be retained in new restructured leader roles for 2023.

It was submitted that historical differences between the SMB and Commercial teams and Mr Wynne’s hostile attitude and exclusionary behaviour towards the complainant and SMB team gave rise to a biased and pre-determined selection process. Whilst the complainant may have perceived a hostile attitude and exclusionary behaviour by Mr Wynne, I find that such an attitude and behaviour was not supported by the evidence. I note in particular in this regard the fact that such issues were never formally raised by the complainant at any stage in her employment with the respondent, including during the consultation process, and it was the complainant’s own account that the bias was in respect of “a time in her employment”.

I consider it of note that the complainant’s role as SMB Director was brought into the Commercial function just prior to, or in or around the same time that, the leaders in the Commercial/SMB function were informed of the risk of redundancy, and that there was an SMB role in the restructured leadership of the Commercial/SMB function. It is further of note that the retained leaders following the selection process had been leaders in the pre-amalgamation Commercial function and direct reports of Mr Wynne, who was directly involved in the selection process. There was no evidence tendered of the sequencing of the decisions to bring Digital SMB in under, or align it with, the Commercial function, to reduce headcount in the Commercial / SMB function and to restructure the leadership roles. The personnel involved across each of these decisions was also unclear. Whilst the decision to reduce the number of Commercial/SMB leaders was taken by Revenue, Strategy & Operations and the decision to restructure the team leader roles was taken by Operations in conjunction with Mr Wynne, it was not clear who took the decision to bring the SMB function into the Commercial function and how these decisions interacted. What is clear is that on foot of an announcement to globally reduce headcount, the impacted employees in Dublin were the Commercial/SMB leaders, that the complainant’s role in leadership on the SMB side had just been brought into the Commercial function and that the complainant was selected for redundancy and Commercial function leaders were retained following a process involving competency-based interviews.

This all happened in a very short timeframe. The respondent’s evidence was that the complainant’s role did not exist in the restructure of the leadership roles. The evidence concerning the restructured roles was of 5 new roles with a greater reporting responsibility, and that the restructure was implemented having regard to factors of cost, span of control and maintenance of similar motions in Commercial and SMB. I am not satisfied that the selection criteria of a competency-based interview and past performance with an 80:20 weighting respectively was objectively reasonable where the complainant was not informed that the interview aspect of the selection process involved assessing her for any one of the five restructured leadership roles and where one of the interviewers had direct and current experience of the competencies of 6 of the 8 candidates, but not of the complainant.

I am also not satisfied that the criteria were fairly and objectively applied to the candidates for the following reasons.

The complainant was informed of the merging of the SMB function with the Commercial function in Dublin when the company informed employees of a global reduction in headcount. The outcome of the redundancy process in Dublin was that the complainant and one other employee from the SMB team were made redundant. The SMB function had operated differently from the Commercial function in terms of its targets and sales motion.

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

ADJ-00044941 - Workplace Relations Commission

The company announcement regarding reduction in headcount was made on 12 December 2022 and, on the same date, the complainant was informed that the leaders on the Commercial/SMB team were impacted and of the selection process. The complainant’s interview in the selection process was held on 14 December 2022. The respondent had identified key competencies for the restructured leadership roles in 2023 however the specifics of the roles were not shared in advance of the interview process and the complainant had not been aware that the competencies being tested were for the roles going forward.

Comments on the complainant’s answers at interview indicate that the differences between how SMB and Commercial had previously operated featured in the scoring of the complainant. Given that 6 out of the 8 interview candidates held managerial roles directly reporting in to one of the interviewers at the material time, I have reservations about the impersonality and objectivity of the selection process.

The respondent’s evidence was that the interview was to assess managerial competencies for the new roles and that the specifics of the role title were not material as a sales manager role has universal competencies. However, the respondent failed to demonstrate where the complainant ranked in the selection process and furthermore that she was evaluated fairly vis-à-vis other candidates involved in the process. The respondent’s evidence was that the interview process was completing auditable however I had no visibility on this. This adjudication is not about substituting my views for the views of the interviewers, but it is about establishing that the complainant was fairly and objectively assessed in the selection process. This is of particular significance where the complainant’s case was that the selection process was used so that Mr Wynne’s direct reports could be retained and where the evidence indicates that the complainant’s role in SMB was taken into account.

The complainant was told on 16 December 2022 that she had been unsuccessful in the selection process and a letter dated the same date gave formal notification of her position having been identified as being at risk of redundancy. This communication dated 16 December 2022 is somewhat out of kilter in the process 0 with its references to evaluation of the business, concern about no longer needing the complainant’s role and an anticipation that “we may no longer need your role in Ireland and we are considering whether it is appropriate to reduce the workforce in this area.” It is clear from the evidence before me that by 16 December 2022 a decision to reduce the number of leaders on the Commercial/SMB team, including a restructure of roles, had already been taken; that was what had given rise to the interview of the complainant on 14 December as part of the selection process.

It was submitted on behalf of the respondent that its process was open and transparent. However, I do not find this to have been so where the complainant was not given her ranking following the interview process and there was no evidence before me to demonstrate that the complainant had been fairly and objectively assessed vis-à-vis the other candidates. The respondent’s evidence was that the interviews were to identify persons for 5 new leadership roles and that the complainant’s role did not exist in the restructured team, however 1 of the 5 restructured roles was that of SMB leader.

The burden of proof is on the respondent, and I am not satisfied it has discharged the burden of showing that the complainant was fairly selected for redundancy.

I have reflected on the consultation process conducted by the respondent, the evidence relating to the process and carefully considered the minutes of the consultation meetings. The consultation process in this case was not so much about consulting with the complainant about the redundancy situation or the selection method, and somewhat about identifying any other role in the organisation that might be suitable. It was certainly not held for the purpose of revisiting the selection process, selection criteria or the decision that the complainant was at-risk following the selection process. The minutes do not reflect real and substantial consultation before taking the decision to make the complainant’s position redundant rather reflect reinforcement of the selection process and outcome and reviewing internal opportunities, predominantly identified by the complainant, as an alternative to redundancy.

The outcome letter following the final consultation meeting confirmed that the complainant’s role would be terminated as no viable solutions had been identified in the consultation process. The outcome letter is dated 9 January 2023, the same date that Mr Wynne wrote to a hiring manager in the company in support of the complainant’s application for a diversity and inclusion management role. I consider the outcome letter to have been premature and inconsistent with what was actually happening in terms of the complainant’s application for another role within the organisation.

I also have reservations about how the outcome letter sits with the evidence of Ms Van Horn that there would have been no purpose to extending the consultation process. There was a right to appeal the decision to Ms Van Horn within 5 business days, as notified in the outcome letter dated 9 January 2024.

There were no contact details provided for Ms Van Horn in the outcome letter. On 12 January 2024, the complainant emailed a member of Ms Van Horn’s team and Mr Wynne requesting extension of the final outcome dates until her application for the diversity and inclusion role was finalised. The complainant also advised that she did not have Ms Van Horn’s email address. On 14 January 2023, the complainant emailed Ms Van Horn directly, after she was copied on an email by Ms Van Horn’s team member, requesting that consultation be extended so that she could explore other roles in the company. The complainant’s request for an extension was made to Ms Van Horn, Mr Wynne and the member of Ms Van Horn’s team who had been directly involved in the complainant’s consultation process. The complainant did not receive a response to her request. Given that the outcome letter dated 9 January 2023 expressly stated that the complainant’s role was being terminated on grounds of redundancy as no viable solutions had been identified, I consider it unreasonable for the respondent not to have either considered the complainant’s request for an extension of the final outcome dates as an appeal or to at least have engaged with the complainant on her request.

In the circumstances, I find that the complainant was unfairly dismissed.

Redress

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

ADJ-00044941 - Workplace Relations Commission

Given my finding, the complainant is entitled to redress which is appropriate having regard to all the circumstances. The complainant’s preferred form of redress was compensation, and it was this form of redress that was addressed by the parties at the hearing and in post-hearing submissions. In such circumstances, I consider compensation to be the most appropriate form of redress and particularly so given the respondent’s restructure, an incumbent post-holder and the passage of time, including a period of intervening employment on the part of the complainant.

In terms of an award of compensation, the complainant has incurred financial loss attributable to the dismissal and therefore falls within the scope of section 7(1)(c)(i) of the 1977 Act. Whilst it was common case at the hearing that the complainant’s base salary with the respondent was €94,800, the parties differed significantly on the matter of other contractual benefits, including what certain payments and awards related to, what should be taken into account in calculating financial loss, and on the issue of whether the financial loss attributable to the complainant’s dismissal was continuing.

It was in this context that I requested post-hearing submissions from the parties on the issues in dispute and relevant to compensation in the event of a finding of unfair dismissal.

It was submitted on behalf of the complainant that the basis for calculating the complainant’s financial loss was her actual remuneration in 2022. The following post-hearing submissions were made in relation to the complainant’s remuneration:· the complainant’s actual remuneration in 2022 amounted to €183,573.07 and should be considered as the basis for calculating her loss; · the complainant’s base salary was €94,800.00 with an additional €62,200.00 payable by way of On Target Earnings (“OTE”) or commission if she reached 100% of her sales targets;

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· in 2022, on the complainant’s payslips, she earned €78,328.12 in OTE which meant her base salary plus OTE amounted to €169,816.00; ·

a €20,000.00 performance-based cash bonus awarded to the complainant in 2022, which was

payable in 2 instalments in March 2023 and 2024, was not received due to the termination of the complainant’s employment; ·

cash equity awards were regularly received and included in the complainant’s remuneration in 2022;

· the complainant was awarded shares in Vista Group to the value of €125,000, with the first of four annual instalments due to be paid to the complainant in April 2023.

It was further submitted that the evidence illustrated the significant efforts made by the complainant to mitigate her loss, the complainant’s financial loss was ongoing and did not cease on the complainant taking up employment on 30 May 2023, which employment terminated after a 15-week period of employment on 12 September 2023.

The respondent submitted that the complainant had not established her earnings by reference to Regulation 7 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 (“SI No 287 of 1977”). It was further submitted that stock options, the prospective exercise of stock options and cash equity payments/awards did not form part of the complainant’s remuneration for the purposes of calculating compensation.

There was some conflation in the submissions of remuneration and financial loss. It is therefore worth noting that an award of compensation is in respect of financial loss attributable to the dismissal, as is just and equitable having regard to all the circumstances. Remuneration is the determining factor in the relevant maximum amount of compensation that may be awarded under the 1977 Act. In this case, the maximum amount of compensation is 104 weeks’ remuneration in accordance with section 7(1)(c) of the 1977 Act. A week’s remuneration is calculated in accordance with the Unfair Dismissals (Calculation of Weekly Remuneration Regulations 1977 (SI No 287 of 1977).

Section 7(3) of the 1977 Act defines “financial loss” and “remuneration as follows:“’financial loss’, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

There was no information before me to support the complainant’s submission on remuneration and the matter of shares awarded in Vista Group to the value of €125,000.00, with the first of four annual instalments in respect of the shares due to be paid to the complainant in April 2023. The respondent disputed the complainant was awarded shares in Vista Group or at all. It submitted that the complainant was awarded a stock option grant of 125 stock options with a granted strike price of $1,000.00 per share.

It was further submitted that the options were granted under two option grants which provided for different vesting conditions. I was provided with stock option plans and agreements and, having considered same, I find them to be consistent with the respondent’s submission that a stock option grant in two blocks was awarded to the complainant and valued at $125,000.00 on 29 March 2022. I note the expiration provisions of the plans regarding unvested options and that the stock options had not vested when the complainant’s employment with the respondent ended. I further note the ownership criteria under the respective plans, namely the procedure for exercise, and vesting conditions.

https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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10/10/24, 12:23 PM

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It is incumbent upon a complainant to prove their loss. I find that the complainant has not established financial loss in relation to shares awarded. The complainant’s submissions did not progress stock options as an aspect of the complainant’s financial loss. For completeness, based on the information before me, including the variables involved in and around unvested stock options and lack of clarity on the financial detail, I am not satisfied that any unvested stock options can be included in an assessment of financial loss and in my calculation of an award of compensation to the complainant for financial loss.

The cash equity awards are different from the unvested stock options having regard to the respondent’s submissions on same. I also note that the complainant’s submission regarding the 2002 performancebased bonus, payable in 2023 and 2024, was not disputed by the respondent.

In calculating compensation, I have had regard to the matters at section 7(2) of the 1977 Act and relevant to this case are the complainant’s measures to mitigate loss. A complainant is under a duty to act reasonably to mitigate loss. I have carefully reviewed the evidence before me on the complainant’s efforts to find work. The evidence is of the complainant’s efforts to find alternative employment beginning in March 2023. She was successful in her efforts and commenced employment with another employer on 30 May 2023. This outcome is indicative of reasonable efforts on the part of the complainant in March and April 2023.

The complainant’s employment with the new employer did not extend beyond the probationary period and terminated on 12 September 2023. I do not accept the submission that any financial loss attributable to the dismissal came to an end when the complainant commenced alternative employment on 30 May 2023. The new employment lasted for a 15-week period and did not extend beyond the probationary period. The employment ending was not attributable to any act or omission on the part of the complainant. In such circumstances, and where the general statutory protection against unfair dismissal 0 did not arise, I do not consider the employment to have been sufficiently permanent in nature so as to operate to stop the financial loss attributable to dismissal. I do however consider the period of alternative employment to be relevant in my assessment of the complainant’s financial loss. In circumstances where the complainant’s contractual package in the new employment was financially more advantageous than that which she had with the respondent; the complainant had no financial loss during this period of employment.

At the time of the hearing dates, the complainant had not been successful in obtaining further employment. The post-hearing submissions refer to the complainant being at the latter stages of a number of recruitment processes but being without a job offer. It was submitted on behalf of the complainant that the complainant’s financial loss was ongoing and clearly attributable to the respondent as per section 7 of the 1977 Act. The complainant’s efforts were focused on sales leadership roles and whilst I consider this to have been reasonable in the immediate aftermath of the termination of her employment with the respondent, I do not consider such a restricted search to have been reasonable in circumstances where she remained out of employment. I consider the fact that the complainant took up work of a different nature over Christmas 2023 to have been a more pragmatic approach in circumstances of unemployment in a buoyant employment economy. The work over Christmas 2023 was temporary in nature and I was not provided with any information on earnings from this source of work. Having spent some time reviewing the documentation relating to job applications, I am also not satisfied that the evidence indicates as dedicated and consistent approach to finding employment in the post-September 2023 period as the period immediately following termination which resulted in an employment opportunity.

Based on the evidence and submissions, I have determined the complainant’s actual financial loss to be as follows:(i)

Base salary of €94,800 for the period from 10 February 2023 to 12 March 2024, excluding

the period from 30 May 2023 – 12 September 2023; (ii)

OTE of €62,200 in respect of the same period and exclusion as set out at (i) above;

(iii)

the 2023 cash equity payments of €6,775; and

(iv) a performance-based cash bonus award in 2022 of €20,000.00, which was due to be paid in March 2023 and 2024.

I determine compensation in respect of the complainant’s loss in the sum of €112,000.00 to be just and equitable having regard to all the circumstances. This sum is based on the complainant having made reasonable efforts to mitigate her loss following the termination of her employment and applying a 50% reduction for the period from 12 September 2023 further to my finding in respect of mitigation efforts in that period.

Decision: Section 8 of the Unfair Dismissals Acts 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. https://www.workplacerelations.ie/en/cases/2024/july/adj-00044941.html

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ADJ-00044941 - Workplace Relations Commission

For the reasons set out above, I find that the complainant was unfairly dismissed.

I award compensation of €112,000.00, payable by the respondent to the complainant, which I consider just and equitable having regard to all the circumstances.

Dated:

1st July 2024

Workplace Relations Commission Adjudication Officer: Kara Turner

Key Words:

Unfair dismissal – Redundancy – Unfair selection – Financial loss – Remuneration – Bonus awards -Shares – Stock options 0

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