A US software firm has been ordered to pay its former senior sales director €169,000 (£142,000) after Ireland’s Workplace Relations Commission found he was unfairly dismissed in a ‘flawed’ redundancy process.
The complainant, Kevin Foley, had been software company Digital River’s most senior employee in Europe when he was made redundant in October 2022.
The WRC adjudicator said that Foley had been dismissed “under the guise of a redundancy”.
“There was no genuine redundancy,” said the decision. “Without prejudice to this, the respondent did not follow any proper consultation process, it refused to engage with the complainant, it failed to consider any proposals put forward by the complainant and had clearly finalised its decision to terminate the complainant’s employment before any process was commenced.”
Mass redundancies had been announced across the e-commerce group in July 2022, but Foley had been assured there would be no further changes in Europe and was specifically asked to communicate and assure his team of the same.
On 15 September his manager Dan Breuer assured Foley again there were no further redundancies and asked him to quash any such rumours in his team. Foley did so and assured Breuer that the EMEA team were not concerned or hearing any such rumours.
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But a week later, an hour before Foley’s one-to-one meeting with Breuer, the purpose of the call was changed to ‘Business Update’ and Becky Garroch, vice president for people and places, was added to the invite.
During the meeting, Foley was informed that his role as senior sales director for EMEA was now “at risk” of redundancy. Just one month earlier, Foley had been informed he was getting a “retention bonus”.
After three consultation meetings, in which Foley asked why Breuer was not also at risk of redundancy as the only other head of sales in the company, Foley was made redundant on 19 October.
He appealed. Digital River appointed Andrew Hedden, general legal counsel, as the appeals officer. However, the appeal, which was dismissed, was decided on documents only, without any meeting or hearing.
The adjudicator noted that Hedden was in a position junior to those who had made the redundancy decision, which was considered unusual as the employee handbook stated: “Where practicable the appeal will be heard by a more senior manager than whoever decided to take disciplinary action. Their decision will be final within the company.”
It also stated that the employee may be accompanied by a colleague or trade union official.
When Hedden was asked at the hearing which appeal process he was using from the employee handbook he replied that he thought none were appropriate. Hedden was also asked if he had checked if there was any national legislation on this subject and replied that he had not.
The adjudicator found that Digital River’s failure to conduct an appeal hearing with Foley at which he could be accompanied constituted a serious flaw and a breach of its own procedures and policies.
Digital River did nothing more than “carry out a box-ticking exercise to give the illusion that it was following fair procedures required in implementing a redundancy”, according to the decision.
“Furthermore, the decision to dismiss the complainant was made by a person who should also have been ‘at risk’ of redundancy if it was a genuine redundancy,” it said.
The adjudicator said: “In conclusion, I find that the dismissal of the complainant was a genuine redundancy situation however the appeals process was so flawed that I must find that the complaint as submitted under section 8 of the Unfair Dismissals Act 1977 is well founded.”
He ordered Digital River to pay Foley a gross sum of €168,700 in a full and final settlement.
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