ADJ-00002225

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002225

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/04/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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. 

Respondent’s Submissions.

The respondent having assessed the business concluded that one and possibly two positions needed to be made redundant. He was aware that the complainant’s daughter’s boyfriend who also worked there was going to leave the business soon as he had completed his studies. He believes that is why he was not selected for the redundancy. The respondent accepts that the complainant was treated badly. The respondent accepts that there was no consultation process and no real selection process in relation to the redundancies. It is also accepted that one individual was employed for three months during the summer months and that this position was not offered to the complainant.

Complainant’s Submissions. 

The complainant worked in an off licence owned by the respondent and leased to a third party. He noticed that in or around Christmas 2015 his hours were getting less and less. He text the gentleman who was running the premises about it. He got no reply at first. He was eventually informed that the business was not doing well and something had to be done about it. On the 20^th February he was called into the office and told that he was being made redundant. He got no prior notice of the pending redundancy and prior to being notified he was not spoken to about it. He asked why it was his position that was selected but he did not get an answer. He was told it was surprising that a man of his age could work the till. He was annoyed by that comment. He asked why his daughter’s boyfriend wasn’t selected. He was the last in. He did not get a reply. The complainant asked if there would be any type of work in any of the respondent’s other businesses but nothing came of that. He stated that he was made aware that at least one individual was employed during the summer months on a part time basis. He was not offered that position.

The complainant has not worked since. He applied for many roles on line. He thinks he applied for about 10 positions in total. He then secured a 9 month training course in the area of pharmaceuticals, from the Job Seekers Department. He has completed that course but has not yet secured employment.

Decision

Section 41 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 of the Unfair Dismissals Acts, 1977 – 2015 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. 

The complainant is claiming that he was unfairly selected for redundancy in the absence of any fair procedures and/or process.

S 6(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

I am satisfied based on the evidence of both the complainant and the respondent that there were no procedures adopted in relation to the redundancy process. There was no selection criteria, objective or otherwise. There was no consultation process at all. The entire process lacked fairness, objectiveness and transparency.

In all of the circumstances I find that the complainant’s claim pursuant to the Unfair Dismissal Act succeeds.

Mitigation of Loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

The complainant, very fairly stated that he only applied for about ten positions. He made the decision to re-train and following completion of his studies to try and find employment in the pharmaceutical field. He has not yet secured employment. I note that the complainant did not have any documentation in relation to the efforts he has made to secure employment. However, he presented as a very credible man and it is on that basis that I do not doubt the veracity of his evidence in this regard.

Remedy

S7(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or 

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

In all the circumstances of this matter I find that the most suitable remedy is that of compensation.

I award the complainant the sum of €5,000.00

Dated:               24 May 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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