ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000011

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/02/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 80 of the Workplace Relations Act, 2015 and Section 8(1) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Complainant’s Submission and Presentation:

The complainant commenced working with the Respondent on the 18^th November, 2013. The complainant worked on the water meter installation project. That project, due to the number of protests did not run smoothly, however the complainant stated that despite that, there was lots of work.  

In or around 2015 the complainant was informed by his brother, who also worked for the Respondent that the Respondents were shortening their crews and as a result would have to let staff go. He received a letter to that effect on the  02.04.2015 stating :

“due to diminished work load we have to let a number of operatives go’

A couple of weeks following his redundancy, he was informed informally by a foreman who worked for the Respondent that things were not as bad as first thought and in fact they had moved from the water project to the to the Luas project. One employee who the complainant believed was made redundant was actually working on the Luas project. The complainant states that a genuine redundancy situation did not exist in the company and despite the complainant being told that all employees who worked on his project positions were being made redundant, they were not. It is in those circumstances that he states a genuine redundancy situation did not exist at the material time.

Furthermore, he argues that here was no consultation process prior to the redundancy.

The claimant had sustained an injury just prior to the redundancies. It is alleged by him that this was the company’s way of getting rid of him.

The respondent’s allegation that the complainant left his employment without giving notice was denied by the complainant. Following the respondents evidence they conceded that that in fact was a mistake and withdrew the allegation.  

Respondent’s Submission and Presentation:

The Respondent worked on the water meter project. They started with about 30 to 35 people in August 2013. In October 2013 they got an opportunity to place more workers on the same project with a different company. On the 18/11/2013 the complainant started working with the Respondent in relation to the second contract. The Respondent had an agreement with company charge with the task managing water in Ireland that they would take percentage of people off the live registered. The claimant was one of those.

That agreement came with conditions. Those conditions are as follows:

•Employees need to be in possession of tickets,

•Employees are required to have CSCS certificates & LUGS certificates etc .

 The project the complainant was working on was based in the Dublin area. Half of the work has not and will not be done due to the protests. Due to the disruptions the work load was reduced by about half.  The contractor informed the Respondent of the reduced work load formally by letter in April, 2015. In March 2015 the Respondent had two meetings with Contractor in relation to the reduction of the workload. Following those meetings it became apparent that Redundancies were inevitable. Time was spent trying to establish the best procedure to adopt in relation to the selection process for the Redundancy.  LIFO was decided as the best and fairest policy. All of the employees had less than two years service. All who worked on the Complainant’s project, save for two skilled workers, were made Redundant.  None of the employees on the complainant’s project moved over to the other water project which project had a different contractor.  They adopted a last in first out and excluded those who had the specific skills we required. One worker with specific skills was employed after the Redundancies were made. The complainant was not asked if he had the skills required to fill the vacant positions within the company because the Respondent had personal knowledge of the complainant’s skills and in relation to the certificates and tickets he had. The complainant did not produce any evidence that he did in fact hold the certificates and tickets required for the few positions that needed to be filled.  

 In relation to the personal injury action the respondent stated that they were only notified of the claim 28th April, 2015 after the complainant was made redundant.  They were aware of the injury itself though. The Respondent engaged with the employees on several occasions in relation to the potential redundancy situation. Those engagements amounted to nothing more than a chat.  Following that and when the number of redundancies was known and the individuals who had been selected they were all given got their notice verbally. The respondent did not write to them in relation to the notice. The Respondents accepts that the Complainant was not offered any other alternative work because there was nothing available for someone with his skills set.   The respondent company is still trading. Work is slow and is running at about 10% of its full capacity. It is not working on the Water project anymore. All that work has stopped

Decision

I am satisfied that a genuine redundancy situation did exist within the company at the material time. However, the Respondent has not satisfied its obligations to the complainant as follows:

•There was no proper consultation process.

•The complainant was not offered alternative employment.

•The complainant was given no formal notice of his pending redundancy.

•The complainant was given no formal notice of the actual redundancy.

On that basis I find that the complainant was technically unfairly dismissed. However, the complainant has not been available for work since April, 2015. He is due to have an operation in March, 2016 and he hopes to be back looking for work by early May, 2016 but won’t know until the after the operation.

I find in favour of the Complainant and all of the circumstances of the case award the complainant

€ 2,000.00

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]

Dated:   26^th April 2016