UDD1741

Background to the Appeal

This is Mr O’Neill’s (“the Complainant”) appeal of an Adjudication Officer’s decision (ADJ-00000860, dated 20 September 2016). The Notice of Appeal was determined by a previous decision of the Court to have been received on 29 October 2016 and was, therefore, within the time limit stipulated in section 44 of the Workplace Relations Act 2015 (as applied by section 8A(2) of the Unfair Dismissals Act 1977 (“the Act”)). The Court heard the substantive appeal in Dublin on 27 July 2017.

It is common case that the Complainant’s employment as a gardener with Mount Congreve Estate Limited (“the Respondent”) was continuous from 5 March 2012 (on which date he had been rehired following a redundancy effected on 18 November 2011) until 30 January 2015 when the Respondent purported to make his position redundant again. The Complainant received and retained a statutory redundancy payment of €4,331.48 in January 2015. It is also common case that the Complainant was rehired thereafter on a series of week-to-week contracts commencing on 9 February 2015 until his employment was definitely terminated by the Respondent on 13 July 2015. There were two occasions in that period between February and July 2015 when the Complainant was absent from the workplace. The nature of those absences is in dispute between the parties and will be considered later in this determination. In any event, the Respondent accepted at the hearing of the appeal that no fair procedures were applied by it prior to the definitive termination of the Complainant’s employment on 13 July 2015.

Preliminary Issue Re Complainant’s Continuous Service

The Respondent submits that the Complainant did not have the requisite continuous service of one year on 13 July 2015 to maintain his complaint under the Act. Their submission in this regard is predicated on their claim that the Complainant was “lawfully made redundant” on 30 January 2015 and that this had the effect of breaking his service with the Respondent. They further submit that the Complainant absented himself from the workplace of his own volition between 8 March 2015 and 25 March 2015 and again between 2 April 2015 and 21 April 2015.

The Court heard detailed evidence from both the Complainant and from Mr Raymond Sinnott in relation to the circumstances in which the Respondent purported to make the Complainant redundant in January 2015 and his subsequent re-employment thereafter. Both witnesses also gave evidence in relation to the Complainant’s periods of absence. The Complainant’s position is that he undertook courses in tree surgery during those periods with the full knowledge and approval of the Respondent. The second period of absence also included a number of days of unpaid annual leave around the birth of his second child.

Having considered the evidence of the parties in relation to the course of the Complainant’s employment history and the parties’ legal submissions with regard to whether or not he has sufficient continuous service to maintain a claim under the Act, the Court determines that the purported redundancy in January 2015 was premature given that there was sufficient work available, on an ongoing basis, to retain him and his colleagues in employment on a week-to-week basis for several months: in the Complainant's case, until 13 July 2015; in the case of others, until October 2015. The Court resolved the conflict of evidence in relation to whether or not the Complainant’s periods of absence in March and April 2015 were with or without the Respondent’s consent in favour of the Complainant whose evidence in this regard the Court found to be more cogent and credible. On the basis of the foregoing, the Court determines that the Complainant had sufficient continuous service to qualify him under the Act.

Dismissal of Complainant on 13 July 2015

It was agreed by the Parties in the course of the hearing of the within appeal that the Complainant’s dismissal on 13 July 2015 was by reason of redundancy. As stated above, the Respondent accepted that it had not effected the dismissal on that occasion in a fair manner. It follows that the dismissal was unfair within the meaning of the Act.

The Complainant gave evidence of his efforts to mitigate his loss as follows. He did not attempt to find alternative work until 30 July 2015. He then secured employment with a pharmaceutical company with effect from mid-August 2015. He was initially employed on a temporary basis at €11.00 per hour. He was made permanent in January 2016 on a salary of €30,000.00 per annum. He left that employment of his own volition in late March 2016 because he had a preference for working outdoors.

In light of the facts as determined by the Court and/or as admitted by the parties, the Court determines that the appropriate redress due to the Complainant in the circumstances is compensation. When in the Respondent’s employment, the Complainant was paid a salary of €22,000.00 per year. He also had the benefit of rent-free accommodation on the Respondent’s property. Having heard the parties’ respective submissions in relation to the market value equivalent of the rent that would be payable on such a property as was made available to the Complainant, the Court estimates that to be €550.00 per month in July 2015.

The Court directs that the statutory redundancy payment to which the Complainant is entitled should be recalculated to reflect: (i) his continuous service from 5 March 2012 until 13 July 2015; (ii) the total value of his remuneration package i.e. his basic salary of €22,000.00 per annum plus the nominal value of the accommodation provided to him at a rate of €550.00 per month. This should be paid to him less the amount of €4,331.48 that he was paid in January 2015. As this is a statutory redundancy payment, it is exempt from income tax.

In addition, the Complainant is to be compensated for his loss of earnings for the two-week period of 1 August 2015 to 14 August 2015 when he was actively seeking alternative employment. The Court determines that the amount of compensation payable to the Complainant in respect of this period is €1,100.00. As this is compensation for loss of earnings, it is subject to income tax.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
8 August 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.