ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000350

Complaint for Resolution:

Date of Adjudication Hearing: 03/02/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint(s and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant was employed as a sheet metal fabricator from January 28^th 2014 until the time of his dismissal on September 4^th 2015 at a rate of €12 per hour. He regularly worked significant levels of overtime which could take his working week up to sixty five hours.  

He sustained an injury at work around June 12^th 2015 which required surgery and he did not return to work up and including the time of his termination on September 4^th when the respondent issued him with a P45. He gave no reason why the employment had been terminated. On September 29^th, his solicitor requested the reasons for his termination pursuant to section 14 of the Unfair Dismissals Act.

No reply was received which the complainant says is procedurally and substantively unfair having regard to section 6 of the Act.

Accordingly he sought compensation under the Unfair Dismissals Acts but submitted that regard should be had not just to his actual loss, but his future losses and the breach of his rights under the Acts

He also submitted that he was not given a week’s notice as provided by his contract and that a claim arises under the Minimum Notice and Terms of Employment Act 1973, in the amount of one week’s wages.

He also claims four weeks holidays which he would have been due under the Organisation of Working Time Act 1997.

Respondent’s Submission and Presentation:

The respondent does not dispute the termination of employment but says it was by reason of redundancy. In evidence a director of the company said that its business was seasonal as the demand for its products peaked in the summer and then tailed off.

From September on demand for its products is low and the company has in the past made employees redundant at that time.

In September 2015 it made the complainant and another employee recruited at the same time as the complainant redundant as they had been most recently recruited to the company which employs a total of six employees at full production.

The witness said that the complainant and his co-worker were told at the point of interview that their continued employment would be subject to availability of work and that it was seasonal work

A document entitled ‘Principle [sic] Statement of Terms of Conditions of Employment was exhibited which was accepted as having been given to the complainant. However, the respondent agreed it did not contain any reference to the contract being subject to a fixed terms or purpose.

The witness accepted that the complainant had not been put on notice of redundancy, there had been no selection process, and the company made no specific contact with him regarding the proposed termination. There had been a vague conversation to the effect that the company’s immediate future prospects were ‘not looking good’.

The witness said that employees were selected for termination every year on the basis of ‘Last in, First out’.

Findings and Conclusions

I have considered all the relevant evidence and argument, oral and written that was laid before me in the course of the hearing and before it.

The first question relates to the nature of the termination. On the face of it, there were two posts (possibly three) which were no longer needed in view of the company’s trading situation and were probably redundant.

However, the matter does not end there, indeed it only begins there. The requirements of a fair redundancy process include notification of being at risk of redundancy and consultation, some assessment and selection process based on fair, objective criteria, some search for alternatives and finally the giving of notice and the issue of a Certificate of redundancy if all previous efforts result in failure.

This is to avoid what the High Court has described in JVC v Panisi [2011] IEHC 279 as a termination ‘under the cloak of redundancy’.

Where it is a genuine redundancy situation (as it may well have been here) then the process leading to the termination of employment must meet the standards of fair procedure which are a precondition to any sort of termination of employment in Irish law. There are different, but not lesser obligations falling on an employer to apply these principles in a redundancy situation where an employee has in excess of one year’s service and falls under the protection of the Unfair Dismissals Act as is the case here.

I find that that did not happen in this case. There was no dialogue with the complainant, no opportunity for the exploration of alternatives, no assessment or hearing process, and finally no certificate of redundancy. The respondent appears to have believed that when the worked dried up, he could select the employees he chose and simply issue them with a P45.

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

The respondent did not dispute the claims under the Organisation of Working Time and Minimum Notice and I find for the complainant on these claims also.

On the matter of compensation the complainant submitted that he was entitled to be compensated for actual loss but also for future loss and for the loss of his rights under protective legislation. The complainant has been on sick leave since April 2015 and has not therefore been available for work

However he submitted that the normal rule that a period when disability benefit is being paid will be discounted as the complainant is not available for work should not apply based on the line of authority in O’Sullivan v O’Sullivan [2009] ELR 334 and Allen v Independent Newspapers (Ireland) Ltd [2001] E.L.R. 84.

In that latter case the EAT accepted that where the illness, (in that case stress) was a result of the conduct of her employer, that the period was reckonable for the calculation of compensation. However the matter of the respondent’s liability for the complainant’s injury is a matter that will be decided elsewhere and was not argued before me.

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.

In respect of his complaint under the Minimum Notice and Terms of employment Act I award him one week’s pay in the amount of €480.00 being 40 hours at €12 per hour.

Under s 27, the Organisation of Working Time Act the claimant was due four weeks holiday which I find to be €1920.00 and award accordingly.

In respect of his dismissal I award him €11,500, being, for the purposes of illustration only, approximately six months salary. This award only under the Unfair Dismissals Act is made for the breach of his rights under the Act and is not in lieu of wages and accordingly is not liable to tax.

Dated:  23^rd February 2016