A Fine Gael county councillor who accused his employer of setting up a “total sham” redundancy in a €312,000 unfair dismissal claim made a “major mistake” by failing to participate in an appeals process, it has been found.
Chartered accountant Edward Timmins, who had claimed his redundancy from a €108,000-a-year position as finance director of Co Wicklow-based AB Group Packaging Ireland Ltd was motivated by an alleged row with its owner over cash withdrawals from the firm, has lost his claim before the Workplace Relations Commission (WRC).
Lawyers acting for Mr Timmins, who represents the Baltinglass Municipal District in Co Wicklow, said relations with the owner of AB Packaging Ltd in Blessington, where he was finance director, went from “robust management exchanges” to “totally unprofessional” in the wake of the failure of the company’s US arm in 2017.
He said he was ultimately “railroaded” out of his job of 19 years.
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The company maintained Mr Timmins never raised any allegations on an interpersonal dispute prior to being notified of a redundancy and only ever “alluded” to them during a consultation process.
Its barrister, Mary-Paula Guinness BL, argued her client had carried out a lawful termination on the grounds of a genuine redundancy situation – and in a decision just published, the Workplace Relations Commission agreed.
Giving evidence, Mr Timmins said he and other directors put a warning in writing to the firm’s owner, Dermot Brady, because they claimed the businessman “effectively took no pay cut” despite agreeing to a 1/5th reduction in his remuneration.
It was claimed Mr Brady was effectively in receipt of €50,000 per month instead of €32,000 at a time when some suppliers “had not been paid for months”.
“We both recognised there was a clash, which I can trace back to me coming to him to tell him to stop taking money out of the company,” Mr Timmins said.
Under cross-examination from Ms Guinness, both former chairman Tony Richie and fellow director Gay McCabe stated that the directors did not demand Mr Brady sell his Dalkey home to provide funding for the business, only that he recapitalise the firm.
“How he did that was his own business,” Mr Richie said.
“Of course I didn’t like it, but did I do it? Yes I did, and I did it in the best interests of the company and the security of the staff,” Mr Brady said in his own evidence. He denied that bore any resentment towards the directors and said: “I was going to move out of the house anyway.”
Under cross-examination from Kate Kennedy BL, for Mr Timmins, Mr Brady said he had invested a sum of €1.7 million from the proceeds of the sale of his house in Dalkey back into the firm. “What’s the problem?” he added.
“Well you’re out of houses, Mr Brady,” Ms Kennedy said.
Mr Brady said he was close to 60 years of age and needed to “squeeze the assets” to make provision for himself in retirement.
“He asked, I listened, I took my decision,” Mr Brady said of Mr Timmons, adding that he had “every right” to withdraw the money from the company as its sole shareholder.
Ms Kennedy, who appeared for Mr Timmins, put it to him that the cash withdrawals had exceeded a statutory threshold.
“I would find that very strange because our auditors who deal with the ODCE were looking for information and say they’re not sure what they [the ODCE] are looking for,” he said.
Mr Brady confirmed that a report had been made to the ODCE by a “third party” in 2018.
“We have answered all questions. Nothing has been proven or said against me or the company,” Mr Brady said. “It’s all documented with the audited accounts,” he added.
He said the ODCE had “came back looking for additional information” in 2021, adding at a hearing in July last year: “There hasn’t been a word from the ODCE since.”
Counsel for the respondent, Ms Guinness, said it was the firm’s position that there were no “interpersonal difficulties” between Mr Timmins and Mr Brady, and that the complainant never made a complaint to that effect during his employment.
HR consultant Mark Slattery of Adare HRM said the complainant only ever “alluded” to any alleged issues during a consultation process on his redundancy.
He said the company had “financial issues to be dealt with” after the failed US expansion and that Mr Brady had called in his firm for a restructuring programme starting in 2018.
He said he wrote to Mr Timmins in January and February 2020, and met with him four times for a consultation process.
Mr Slattery said the company had set out a business case for a restructuring arrangement because of the company’s “retraction” from the US market; the reduction in financial management needs because of a new software system and the “continuing need to reduce the cost base of the business”.
During the consultation process, the tribunal heard, Mr Timmins’ position was that the suggestion the firm needed to cut costs was “at odds” with “the owner extracting significant amounts of money”.
The complainant added the company had lost business due to being “stripped of experienced people” in a “mass exodus” of staff and that making him redundant would damage the firm further, the tribunal was told.
Mr Slattery said Mr Timmins failed during the consultation process to outline any alternatives to his redundancy, which would achieve the same results as the proposed restructuring plan and was ultimately made redundant on February 24th, 2020.
He said Mr Timmins was offered an appeal to an investigator engaged by the firm, but raised questions about the independence of the individual.
“The complainant’s refusal to participate in the appeal process was, I believe, a major mistake on his part. It would have provided the opportunity to air many of the points he had raised throughout the consultation process,” wrote adjudicating officer Jim Dolan in his decision.
“This was a genuine redundancy situation,” he added, and rejected Mr Timmins’ claim.
The decision comes over two years from Mr Timmins’ original complaint, following four hearing dates and a second adjudicating officer being assigned to hear the matter after Mr Timmins’s barrister asked the first to recuse himself over an alleged conflict of interest.