An employee raises a serious concern about their manager.

A redundancy is also being considered.

What should the employer do?

A recent Workplace Relations Commission decision shows why those two issues need to be handled very carefully.

A phone-shop employee reported what he regarded as an “irregular practice” by his manager to a company director.

Three days later, he received notice that his employment was ending by reason of redundancy.

The employer said it was facing an ongoing financial crisis and needed to reduce labour costs.

The WRC accepted that the business may genuinely have been experiencing trading difficulties.

But the redundancy was still found unfair.

The employee was awarded:

€10,800

representing 20 weeks’ loss of earnings.

For employers, this is a useful reminder that two questions need to be considered separately:

Is there a genuine business reason for restructuring?

and

Was this employee treated fairly and for reasons genuinely unrelated to the concern they raised?

1. What Exactly Has the Employee Reported?

Start with the report itself.

In this case, the employee alleged that his manager was selling phone cases but recording the transactions as repairs, thereby allowing the manager to claim a maintenance bonus.

The employee said he believed the practice was improper and potentially unlawful.

The WRC Adjudication Officer described his communication as having the “hallmark of a protected disclosure.”

Not every complaint about a manager will amount to a protected disclosure.

An employee may simply be raising:

• a personality conflict;
• a grievance;
• concerns about workload;
• disagreement with management;
• bullying allegations; or
• an operational problem.

But where the employee is providing information about potential wrongdoing, employers should stop and assess what has actually been reported.

Do not decide that someone is simply being difficult before you understand the substance of the concern.

2. Does the Report Need to Be Investigated?

Once a potentially serious concern has been raised, ask what process is appropriate.

The Adjudication Officer noted that, in a properly managed organisation, concerns of this nature would ordinarily trigger an appropriate investigation.

That does not mean every allegation must automatically result in a lengthy external investigation.

The appropriate response depends on the issue.

But the employer should decide:

• What is being alleged?
• Is there documentary evidence?
• Who may have witnessed it?
• Is the manager accused of wrongdoing?
• Can somebody internally investigate independently?
• Would external fact-finding be more appropriate?

This is particularly important where the complaint concerns the employee’s direct manager.

The manager should not simply be left to deal with the person who made the allegation.

3. Was the Redundancy Already Being Considered?

This is often the key question.

The employer may genuinely have been considering cost reductions before the employee ever raised the concern.

If so, preserve the evidence.

Look for:

• management emails;
• financial accounts;
• cash-flow forecasts;
• staffing plans;
• board or management meeting notes;
• restructuring proposals;
• discussions about store performance;
• previous communications with affected employees; or
• evidence showing when the employee’s particular role first came under review.

The closer the workplace report and redundancy are in time, the more valuable those records become.

In this case, the employee reported his manager on 25 August.

He received his redundancy letter on 28 August.

Three days is a very short period.

If the redundancy was already planned, the records should be capable of showing that.

4. Are the Complaint and Redundancy Being Kept Separate?

This is critical.

An employer can have a genuine redundancy situation involving someone who has also raised a serious complaint.

One does not automatically prevent the other.

But they should be managed separately.

Ask:

• Who is investigating the employee’s concern?
• Who is making the redundancy decision?
• Is the manager complained about involved?
• Has that manager influenced the decision?
• Are senior management relying on information supplied by them?
• Can the employer show an independent business basis for the redundancy?

Where possible, avoid putting somebody who is the subject of a complaint in control of a process which could end the reporting employee’s job.

Even if the redundancy is genuine, that overlap can make the process much more difficult to defend later.

5. Has There Been Meaningful Consultation?

The WRC accepted that the employer may have had real trading difficulties.

However, it found the redundancy process significantly deficient.

The reported decision identified an absence of meaningful consultation.

For employers, consultation should be more than telling an employee that the decision has already been made.

Depending on the circumstances, the employee should have an opportunity to understand:

• why their role is at risk;
• what change the business is proposing;
• why their particular role is affected;
• what selection process is being used;
• whether other options exist; and
• whether they have suggestions that could avoid dismissal.

Consultation does not mean the employer must accept every alternative proposed.

It does mean there should be a genuine opportunity to discuss the position before the final decision is taken.

6. Have Alternatives Been Considered?

The WRC also criticised the lack of consideration of alternatives to dismissal.

Where the issue is cost reduction, consider whether other realistic options exist.

Depending on the business, those might include:

• another position;
• redeployment;
• different duties;
• reduced hours;
• voluntary redundancy;
• temporary measures;
• changes to staffing patterns; or
• another suitable vacancy within the business.

Sometimes there genuinely will be no realistic alternative.

That is fine.

But the employer should be able to show that the question was actually considered.

“There was no alternative” is stronger when the employer can show what alternatives were reviewed and why they were unsuitable.

7. Would We Make the Same Decision If the Complaint Had Never Been Made?

This is the final question employers should ask before taking an irreversible step.

Imagine the employee never sent the WhatsApp message.

Would their role still have been identified for redundancy?

Would the timing have been the same?

Would the same manager have been involved?

Would the same selection decision have been made?

Would the same consultation process have followed?

If the answer is yes, the employer should ideally have evidence supporting that position.

That evidence is much easier to create and preserve while the process is happening than months later at a WRC hearing.

The €10,800 WRC Award

The WRC upheld the employee’s unfair dismissal complaint.

The award was:

€10,800

representing 20 weeks’ loss of earnings.

The case is particularly useful for employers because the WRC did not simply conclude that the business had invented its financial difficulties.

The Adjudication Officer accepted that trading difficulties may have existed.

The problem was the way the employee’s dismissal was handled.

There was no meaningful consultation, inadequate advance notice and no proper consideration of alternatives.

And all of this took place immediately after the employee had raised serious concerns about his manager.

What Should Employers Do in a Similar Situation?

If an employee raises potential wrongdoing while restructuring or redundancy is being considered:

• preserve the original report;
• assess whether protected-disclosure procedures may apply;
• decide whether an investigation is required;
• keep the reporting process separate from redundancy;
• identify potential conflicts of interest;
• document when restructuring began;
• preserve the commercial evidence;
• consult meaningfully;
• explore realistic alternatives; and
• ensure the final decision can be explained independently of the employee’s complaint.

How Employment Matters Can Help

These situations are often difficult because more than one workplace process is happening at the same time.

The business may genuinely need to restructure.

The employee may genuinely have raised a serious concern.

There may also be:

• a grievance;
• allegations concerning a manager;
• a need for an independent investigation;
• deteriorating workplace relationships;
• redundancy consultation; or
• an existing WRC complaint.

The first step is identifying which process is actually required.

Employment Matters can support employers with:

• workplace investigations;
• assessment of workplace complaints;
• redundancy and dismissal processes;
• workplace mediation;
• performance management;
• WRC claim preparation and defence; and
• hearing preparation and representation where agreed.

Sometimes the right answer is investigation.

Sometimes it is consultation.

Sometimes the relationship may be capable of resolution through mediation.

And sometimes the employer needs to prepare to defend a WRC claim.

The important thing is choosing the process before the situation chooses it for you.

The Wider Employer Lesson

An employee who reports potential wrongdoing is not immune from genuine redundancy.

But a redundancy occurring immediately afterwards will naturally attract scrutiny.

If the redundancy is genuinely unrelated:

Be able to prove when it started.

Be able to explain why this role was selected.

Consult properly.

Consider alternatives.

Keep the complaint separate.

A genuine commercial reason is important.

A fair and well-documented process is what allows the employer to stand over it.

Request a Call

If your organisation is dealing with:

• a complaint about a manager;
• potential wrongdoing;
• a workplace investigation;
• redundancy;
• dismissal; or
• a WRC claim,

you can request a call with Employment Matters.

Briefly outline the issue, the stage it has reached and any relevant deadlines.

Our initial contact is used to gather information and identify the appropriate next step. Detailed advice, investigation, mediation or representation is provided under an agreed scope of work.

This article is for general information purposes only and should not be treated as legal advice. The appropriate process will depend on the individual circumstances.