UDD1713

The Appellant was employed by the Respondent from 7^thMarch 2004 until the termination of his employment on 13^thAugust 2015. The fact of dismissal is not in dispute.

The Appellant made a complaint to the Workplace Relations Commission on 4^thNovember 2015 and the Adjudication Officer, in a decision dated 5^thOctober 2016, found that the Appellant had been unfairly dismissed and awarded the sum of €80,000 in compensation to be added to the payment of an amount of money paid to the Appellant as a redundancy payment at the time of his dismissal.

The Appellant, in his appeal, sought re-instatement rather than compensation or in the alternative a greater award of compensation.

Background

The Appellant worked under a contract of employment with the Respondent. The latest iteration of that contract, and asserted to be the operable version of that contract at the date of dismissal, was a contract concluded on 5^thMarch 2014 and bearing the identifying mark of the office of the Respondent’s legal adviser as well as the signature of the Appellant and a representative of the Respondent.

The Appellant’s contract provided for working over five days from Monday to Friday starting at 8.00am each day and finishing at 4.30pm on each day from Monday to Thursday and 3.00pm on Friday. The contract specifies that the employee may be required to work overtime. Notwithstanding the content of the contract of employment drawn up in March 2014 the Appellant had been working a four day week since 2009 on the basis of ten hours attendance each day. In addition the Appellant had been liable, since 2009, for on-call for 50% of all hours outside of normal working time including weekends, evenings, nights etc.

Dialogue commenced between the parties in early 2014 wherein the Respondent proposed that the Appellant would return to a regime of working over five days and that he would continue to be liable for on-call for 50% of all hours outside of his normal working hours.

No agreement was reached between the parties as regards this proposal and the employment was terminated by the Respondent on 13^thAugust 2015.

Position of the Respondent

The Respondent contended that the Appellant was facilitated with four day working in 2009 in response to his personal circumstances. The Respondent conceded in evidence that in addition to the personal circumstances of the Appellant the change in working hours reflected developments in the contract with their sole client in Ireland in whose premises the Appellant was located while at work.

The Respondent contended, including in evidence, that the needs of the client evolved over time and that in 2014 it was necessary to have an Engineer in Charge (EIC) on the client premises on five days per week. The Appellant was employed as an EIC and therefore his presence was required on site each day from Monday to Friday. The Respondent also contended, including in evidence, that the requirement for the Appellant to be on call for 50% of all hours outside working hours, remained a requirement of the role of EIC.

The Respondent contended that while the Appellant was willing to revert to five day working the Appellant was not willing to continue to provide on call cover while working over five days instead of four. The Respondent ultimately, following extensive engagement and dialogue, concluded that in the absence of an agreement on the part of the Appellant to continue on-call that the position of EIC working four days per week and on-call for all hours outside working hours was redundant. The Respondent asserted that in consequence of this decision the Appellant was dismissed by reason of redundancy on 13^thAugust 2015 and that a process ensued to recruit an EIC working over five days and providing on-call cover for 50% of all hours outside of normal working hours.

The Respondent submitted that the Appellant had been offered a position as an FSE (a grade of employee employed on the client site by the Respondent) with the Respondent as an alternative to his occupying the role of EIC over five days and operating on-call. The Respondent confirmed in evidence however that no formal such offer had been made in light of the Appellant’s outright rejection of the possibility of taking up the role of FSE when the matter had been mentioned by the Respondent in a meeting.

The Respondent acknowledged that the Appellant had been agreeable to working over five days as proposed by the Respondent but that the difficulty which led to his contended for redundancy was the unwillingness of the Appellant to work on-call while working five days per week.

Position of the Appellant

The Appellant contended that he had agreed to change from an arrangement whereby he worked five days per week to one of four day week working with a heavy on-call liability in 2009. The Appellant contended, including in evidence, that his personal circumstances were no part of the consideration at the time of this alteration in his working arrangements.

The Appellant contended that he had at all times protested the challenge of working on-call to the degree required of him since 2009. He asserted that he had attempted since 2009 to develop alternatives to the liability for on-call for 50% of all his time outside normal working hours but that he did not receive support from the Respondent in that regard.

The Appellant contended that he was at all times willing to work over five days per week as proposed by the Respondent and as set out in his contract. He asserted that in addition he was prepared to be liable for an amount of on-call but that he would only agree to that on the basis that more persons were involved in an on-call roster resulting in a reduced and more reasonable liability on him.

The Appellant contended that his position had not been made redundant in 2015 and that he had instead been unfairly dismissed by the Respondent.

Discussion and conclusions

The facts of this matter are, in the main, not in dispute.

The contract of the Appellant is clear in its terms and, when concluded in March 2014, incorporated the following clause

• ‘This agreement embodies the entire agreement and understanding between the parties hereto and is in substitution for any previous offers of employment made by the Company or agreements made by the Company and the Employee and such offers or agreements are hereby deemed to have been withdrawn or terminated by mutual consent as and from the date hereof’

It is difficult for the Court to understand the process or considerations which brought the parties to conclude a comprehensive and detailed contract of employment on 4^thMarch 2014 which, as is common case, did not describe the operation in practice of the role it asserted it was describing.

Nevertheless the Respondent has confirmed to the Court that the contended for redundancy of the Appellant did not take place because of an unwillingness on the part of the Appellant to carry out his role over five days and as described in the contract of employment. The Respondent has acknowledged that the role of EIC as operated by the Appellant was made redundant because the role of EIC operating over five days without an on-call liability of 50% of all hours outside normal working hours was no longer available in the employment.

This matter therefore is centred on the Appellant’s willingness or otherwise to work on-call while working over five days per week. The Court notes that the proposal to move to five day working made by the Respondent did not have the effect either of increasing the working hours of the Appellant or of increasing his liability for on-call outside of normal working hours.

The Act at Section 6(4)(c) provides that a dismissal of an employee as a result of the redundancy of the employee shall not be an unfair dismissal. The Court is unclear as to the exact role which the Respondent identified as being redundant in 2015. The Respondent has asserted that the role of EIC working over five days per week with no on-call liability was redundant. The Respondent has also asserted that the role of EIC working four days per week with a liability for on-call for 50% of all hours outside normal working hours was redundant. This lack of clarity by the Respondent in defining the role which it contends was redundant in 2015 is troubling to the Court.

The Redundancy Payments Act 1967 (the Act of 1967) as amended states that an employee shall be taken to be dismissed by reason of redundancy if

• (b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

• “(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

  (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, …

It is clear that the Appellant did not refuse to undertake an on-call liability in a five day working environment but that he refused to undertake, in that changed operation of his role, the degree of on-call liability which he had undertaken since 2009.The Respondent did engage in extensive dialogue with the Appellant over an extended period but failed to achieve any progress in terms of adapting the on-call liability attaching to the EIC role.

The Court accepts that the role of EIC in this employment worked over five days with no on-call liability was not available in the employment in 2015. The Court finds that both parties understood and accepted that in 2015. That is the role described in the contract of employment of the Appellant but that is not the role the Appellant had carried out since 2009.

The role which the Appellant carried out since 2009 involved four days working per week and an on-call liability for 50% of all hours outside normal working hours. The Court finds that this role was not redundant within the meaning of the Act of 1967 in 2015 albeit that an imperative to adapt arrangements in response to client demand was apparent and clearly accepted by both the Appellant and the Respondent.

The Court finds that the Respondent did not explore every alternative to dismissal before reaching a decision to dismiss the appellant. The Respondent confirmed that no formal offer of a position of FSE was made to the Appellant. That role could have been made available to the Appellant and it would have produced an earning opportunity consistent with that of EIC.

The Court finds that no meaningful effort to achieve an alternative to an on-call liability of 50% of all hours outside of normal working hours was made prior to arrival at a decision to dismiss. In that regard the Court notes that the Respondent employs six persons with the requisite skills to carry out on-call on the site of the Respondent’s sole client in Ireland and that the four staff not on-call as part of their role are available for and do provide on-call cover in ‘emergencies’.

The Court, having found that no redundancy within the meaning of the Act of 1967 arose in this case finds that the Respondent failed to take adequate measures to explore alternatives to dismissal in the circumstances which arose in the employment.

Determination

For the reasons outlined above the Court determines that the Appellant was unfairly dismissed.

In circumstances where the Respondent asserted repeatedly to the Court that, for stated reasons, trust and confidence had broken down between the parties, the Court believes that compensation in respect of financial loss is the appropriate remedy in this case. The Court notes that the Appellant has failed to provide evidence of his attempts to secure alternative employment following his dismissal.

In all the circumstances therefore and taking account of the earnings of the Appellant prior to his dismissal the Court affirms the decision of the Adjudication Officer and determines that the Respondent should pay to him compensation in the amount of €80,000 in addition to the amount of €28,500 already paid to him on termination of his employment.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
3 April 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.