ADJUDICATION OFFICER DECISION

A Dumper Driver –v- A Construction Company

Adjudication Decision Reference: ADJ-00002619

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

Date of Adjudication Hearing: 21/02/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 8(1B) of the Unfair Dismissals Act, 1977; and Section 11 of the Minimum Notice & Terms of Employment Act, 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The claimant was employed as a dumper driver/labourer from 13th January 2014 until 23 October 2015. Prior to this appointment he was employed by the Respondent from January 2012 to 3rd December 2013.

The claimant alleged that he was unfairly selected for redundancy and as such he was on unfairly dismissed. He has also alleged that he was only provided with 11 days notice of being made redundant.

The Complainant was paid €650 per week for a 45 hour working week which amounts to €15.14 per hour.

Complainant’s Submission and Presentation:

Complaint Under Section 8 of the Unfair Dismissals Act, 1977 CA-00003727-001/ CA-00003801-001

The Complainant made two separate submissions for the same complaint.

The complainant maintained that he commenced working with the Respondent on 12th February 2012 and the continued working on a project until he was dismissed on 6^th December 2013, approximately eight weeks short of two years’ service. The Complainant contended that this decision was made to avoid the Respondent having to pay him redundancy, but nonetheless he was re-employed some eight weeks later, on 30^th January 2014 as part of a three-man team on motorway maintenance. He occasionally drove a dump truck while on this project.

He maintained that in July 2015 he was moved to another site belonging to the Respondent to specifically drive a dumper truck and he remained in this position until 23^rd October 2015 when he was dismissed. He argued he was given notice of his termination on 12^th October 2015, some eleven days earlier. The Complainant maintained that another colleague with less service than him was relocated to the Complainant’s previous role on the motorway maintenance.

The complainant argued that he should be deemed to have continuous service from 12^th February 2012 as he had worked with the Respondent from then, with the exception of an eight week break in from 6^th December 2013 to 30^th January 2014 due to a project he was working on for the Respondent finishing in December 2013. The Complainant was reappointed on 30^th January 2014 to a motorway maintenance project, which he argued was still ongoing at the time of his dismissal on 23^rd October 2015. As such, and in light of his continuous service, he argued he was entitled to redundancy if his job had ceased.

The Complainant also argued that his selection for redundancy was unfair in that he had been serving in the role longer then a colleague who was redeployed to the motorway maintenance.

The Complainant argued that employers must act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. Referring to section 5 of the Unfair Dismissal Amendment Act, 1993, the Complainant maintained that “in determining if a dismissal is an unfair dismissal, regard must had…to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

In support of his complaint, the Complainant referred to two cases where he contended the Employment Appeals Tribunal has handed down substantial awards in penalising employers who fail to adhere to fair procedure, even when there is a genuine redundancy. The Complainant argued that no genuine redundancy existed and further referred to Mackey v Resource Support Services Ltd (UD 56/2009) and Fennel v Resource Facilities Support Ltd (UD 57/2009) where he maintained the Tribunal held that while both cases were genuine redundancies the employer did not adopt fair procedure in effecting the redundancies. In this regard the Complainant made reference to the precedent set in these cases where the employer is required to:

• engage with employees before announcing a decision to restructure;

• properly consult with employees on the procedures to be adopted in redundancy cases where the consultation should be real and substantial;

• consider a selection matrix with employees;

• afford employees a reasonable opportunity to consider the redundancy procedures, and with an opportunity to make proposals that might avoid a redundancy.

Accordingly, central to the Complainant’s argument was the alleged lack by the Respondent of providing such notice, consultation, and consideration of alternatives. As such it was argued the Respondent did not behave reasonably in making its decision to dismiss the Complainant, nor did it provide the Complainant with the information at as an early opportunity as it could have had which would have enabled the parties to explore alternatives to the dismissal which might have included placing the Complainant on reduced hours, short time, or in considering redeployment and any alternative employment that might be available within the organisation. Furthermore it was argued that the Complainant was not afforded the opportunity to put forward any proposals for the Respondent to consider.

With regard to applying a fair manner in selecting employees for redundancy the Complainant referred to Gillian Free v Oxigen Environmental UD 206/2011 and Jim Dowdall vs Oxigen environmental UD 207/2011, where the Tribunal upheld that an employer must act fairly and reasonably when selecting one employee over another for redundancy.

In summary the Complainant argued that:

• the eight week break in his employment from December 2013 should not be considered as a break in service for redundancy purposes as the Respondent had dismissed him at that time to avoid its obligations under the Redundancy Payments Act, and had appointed him again some weeks later.

   

• the moving of him to another site in July 2015 as they needed his skills to drive a dumper truck and his subsequent dismissal some three months later rather than redeploy him back to his previous job was an unfair selection for redundancy and as such was an unfair dismissal.

   

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00003727-002/ CA-00003801-002

The Complainant argued that the 11 days’ notice was contrary to his statutory minimum notice.

Respondent’s Submission and Presentation:

Complaint Under Section 8 of the Unfair Dismissals Act, 1977 CA-00003727-001/ CA-00003801-001

The Complainant made two separate submissions for the same complaint.

The Respondent maintained that the Complainant was employed as a Dump Driver for different periods of employment. The Respondent acknowledged that Complainant was made redundant previously in 2009 and he had received redundancy payment at that time.   It further acknowledged that the Complainant was employed in 2011 for a few weeks work, and they took him back again for a third time from 12^th February 2012 to 6^th December 2013 to work on a site but this work came to an end in December 2013. As a result the Complainant was made redundant at that time but he did not receive redundancy as his employment was under 104 weeks' service. The Respondent refuted that it let the Complainant go in December 2013 in order to avoid paying him redundancy payment.

The Complainant was rehired on 30^th January 2013 and remained on a site until 17^th July 2015. The Respondent argued that there were peaks and troughs of work at this site, and as the Complainant’s skills were no longer needed they found alternative work for him in July 2015 where a dumper driver was required at a different site. This site work subsequently came to an end in October 2015. All three of the dump/excavator drivers on that site were given two weeks' notice and made redundant on 23^rd October 2015. The Respondent maintained that all of the sites the Respondent operated were coming to an end at this time and there was nowhere to send the Complainant. As the Complainant had less than 104 weeks' service he did not receive a redundancy payment.

The Respondent maintained that its business has suffered a significant decline since the recession began in 2007. Set within this context it argued that when a site comes to an end, and there is no guarantee of future work, construction companies are left with no choice but to make redundancies.

The Respondent maintained that it has always selected on the basis of skills, and on a site by site basis where any workers retained are retained on the basis of their position and skills and the work that is available for those skills and position. It maintained that selection for redundancy in the construction industry is more difficult than all other sectors of the economy due to the multitude of places of work that it may have, and where a different site may require a significant skill differentiation between employees in the same grade. Accordingly the Respondent argued that it has long been recognised that selection takes place on a "site by site" basis according to the skills of the workers. Under such circumstances as there are numerous different skills certified including those under the mandatory Construction Skills Certification Scheme, forklift, Scaffold anchor tying, fire safety, general Health and Safety legislation for construction workers it cannot undertake certain tasks without certification and where upskilling workers can be costly and timely; and where it can take several months for a worker to be provider the required skills training for particular site work. It therefore maintained that it considered these aspects when selecting the Complainant for redundancy over other workers.

In addition the Respondent argued that generally the continuity of employment has always been very difficult in the industry as employees move from one job to the next and projects do not neatly fall in place. Work and continuity of work for a contractor largely depends on a successful tender for a project. This is one of the reasons that selection for redundancy takes place on a site by site basis. The nature of the industry, projects and employment in the industry is uncertain. In this regard the Respondent referred to the previously registered Employment Agreement (Construct ion Industry Wages and Conditions of employment) which stated that "In the case of dismissals, it is recognised that in the circumstances of the construction industry it is the prerogative of employers to take a decision in any particular case. This however does not affect the right of the trade unions to invoke the agreed procedures in any given case. In the event of dismissal due to redundancy, having regard to experience, skills and disciplinary record (all other things being equal}, "last in first out" will apply".

The Respondent therefore maintained that the agreed redundancy selection criteria is quite clear in that "last in first out" only applies where skills, experience and disciplinary record are equal/the same. The Respondent advised that there is also a significant body of case precedence from the Employment Appeals Tribunal on selection for redundancy on a "site by site” basis according to the skills of the workers; however it did not refer to any specific cases upon which it was relying on this precedent. I

The Respondent further argued that it would have had to make some other employee redundant in order to keep the claimant in employment. It asserted that the Complainant was aware that the site was coming to an end, he had been made redundant on three previous occasions and told the Contracts Manager that he "understood the situation" when he was given not ice of redundancy on this occasion.

In summary the Respondent stated:

• it did not terminate the Complainant’s employment on 6^th December 2012, or 23^rd October 2015 in an attempt to avoid redundancy payment as it maintained that on both occasions a genuine redundancy existed in accordance with section 7(2l(a) of the Unfair Dismissals Act, as "the requirements of the business for the employee to carry out work of a particular kind has ceased or diminished".

• it applied the custom and practice in the construction industry where in general selection criteria for redundancy is based on skills on a site by site basis. Therefore, the claimant was selected for redundancy fairly.

   

  Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00003727-002/ CA-00003801-002

  This Respondent refuted that the Complainant was not given sufficient notice of redundancy in accordance with the Minimum Notice and Terms of Employment legislation. In response, it maintained that as the claimant had less than two years' service, he was entitled to one week of notice in accordance with the Minimum Notice and Terms of Employment Act, 1973. In this regard, it advised that the Complainant was issued with a letter by the Contracts Manager on the 12^th October 2015. This letter informed the Complainant that he was being made redundant on 23^rd October 2015, and as such the Complainant received two weeks' notice and under these circumstances the Respondent argued it exceeded its obligations under the Minimum Notice legislation.

Findings:

Complaint Under Section 8 of the Unfair Dismissals Act, 1977 CA-00003727-001/ CA-00003801-001

The Complainant has argued that he was unfairly dismissed as he was unfairly selected for redundancy on 12^th October 2015. In providing his evidence under this complaint the Complainant has stated that he should have received a redundancy payment on 23^rd October 2015, the date of his termination of employment, as his previous dismissal on 6^th December 2013 should not be considered a dismissal in that he was re-engaged again on 30^th January 2014 only eight weeks after his dismissal.

Whilst acknowledging that the period between his dismissal and re-engagement only amounts to eight weeks, I find that in light of the statutory time limitation to make a claim for Unfair Dismissal for that period I am precluded from considering whether the Dismissal in December 2014 was a sham dismissal in order for the Respondent to avoid any future redundancy payments. Clearly there are options under the Redundancy Payments Act, 1967, as amended, for employers to consider lay off rather than redundancy, but the Respondent did not consider that option at the time, and it appears that the Complainant accepted the decision of his dismissal in December 2013 in light of the availability of work, and that he had experienced similar terminations before. Whilst the decision of the Respondent in December 2013 certainly did not factor in further opportunities in a matter of weeks, equally it appears the Complainant is only now seeking to have this eight week period treated as a lay off in order to qualify for redundancy payments in October 2015.

Having considered the matter of whether the Complainant qualifies for a redundancy payment in October 2015, and deciding I am precluded from hearing that element of his complaint, I will now move to my findings in relation to the complaint of being unfairly selected for redundancy in October 2015.

The evidence supports that the Complainant was moved to another site in July 2015, and where the Respondent was aware that the work on this site was due to finish in a matter of months. I am not satisfied that the Respondent provided the Complainant with sufficient information regarding the likely termination of his employment in October 2015 if he took this position. Whilst the Respondent may not have been entirely aware that there would be no work for the Complainant on any other site by October 2015, it is clear that had the Complainant remained working on the motorway site he would have continued working until after his dismissal on 23^rd October 2015. The net effect of the Respondent’s decision to move the Complainant from the motorway site meant that a colleague with less service that the Complainant was retained on the motorway site.

The Respondent has argued that decisions with regard to selection for redundancy are based on skills and available work. In this regard, as the Complainant had worked on the motorway site prior to his change in July 2015 there is no question regarding and doubt in relation to his suitability to be returned to the motorway site if the work on the new site had finished. Under such circumstances, and in consideration of the “last in first out” procedures which is identified by the Respondent as being the default selection procedures for redundancy, all thigs being equal, then it is evident to me that the Respondent did not apply fair procedures when deciding to making the Complainant redundant.

I therefore find that the selection of the Complainant for redundancy was not fair or transparent. The Respondent did not meet its obligations under Section 5 of the Unfair Dismissal’s (Amendment) Act 1993 which, as referred to in the jurisprudence referenced above by the Complainant,   provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of dismissals. Significantly in the Respondent, in making its decision to select the Complainant for redundancy:

• Failed to consult or engage with the claimants before announcing the decision to restructure.,

• Failed to properly consult with the claimants on the procedures that it adopted, noting that the consultation should be real and substantial.

• No selection matrix was discussed with the claimants;

• Did not afford the claimants a reasonable opportunity to consider these procedures,

• Did not afford the claimants an opportunity to make proposals that might avoid a redundancy.

  I therefore uphold the Complaint and find that the Complainant was unfairly dismissed.

   

  Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00003727-002/ CA-00003801-002

  The evidence presented confirms that the Respondent provided notice of the dismissal due to Redundancy to the Complainant on 12^th October 2015, some eleven days before the termination date. Section 17 of the Redundancy Payments Act 1967 requires an employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service, two week’s notice in writing. As the Complainant has less than 104 week employment the Minimum Notice & Terms of Employment Act, 1973 applies. Section 4 of the Act requires a minimum of one week’s notice for employees with less than two year’s continuous notice.

  I therefore do not find that the Respondent is n contravention of the Act and do not uphold this complaint.

Decision:

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

Complaint Under Section 8 of the Unfair Dismissals Act, 1977 CA-00003727-001/ CA-00003801-001

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.

As I have found the Respondent is in breach of the Unfair Dismissals Act, I decide that compensation is the most appropriate award for the Complainant. I am satisfied that since his dismissal the Complainant had been seeking work to mitigate his loss but initially only found intermediate work. His P60 for 2016 confirms his earnings for the year ending December 2016 amounted to €27,638, some €6,162 less than his earnings with the Respondent.

I therefore aware compensation amounting to €12,700 to the Complainant as a result of his Unfair Dismissal.

I order this payment to be made within 42 days from the date of issue of the decision.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00003727-002/ CA-00003801-002

In accordance with Section 12 of the Minimum Notice & Terms of Employment Act, 1973, I do not uphold the Respondent is in contravention of the Act and therefore decide this complaint falls.

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Dated:   04 July 2017