FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : ELARK DEVELOPMENTS LIMITED (REPRESENTED BY BOWLER GERAGHTY & COMPANY) - AND - BRENDAN FLANAGAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision No ADJ-00005149.
BACKGROUND:
2. This is an appeal by the Employer under the Unfair Dismissals Act 1977-2007. A Labour Court Hearing took place on 9th May 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Elark Developments Limited against a decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts). The Adjudication Officer held that the complaint of unfair dismissal was well founded and ordered the Respondent to pay the Complainant the sum of €15,750 in compensation.
In this Determination the parties are referred to as they were at first instance. Hence Elark Developments Limitedis referred to as ‘the Respondent’ and Mr Brendan Flanagan is referred to as ‘the Complainant’.
Background
The Respondent is a construction company. The Complainant commenced employment as a Labourer with the Respondent on 1st March 2014. The Complainant’s legal representative told the Court that in his view the Complainant’s employment terminated on 19th October 2015, the day he received his P45. The Respondent’s legal representative stated that the date of dismissal was 25thAugust 2015, the date of his last payment from the Respondent. The Complainant referred his claim under the Act on 25th January 2016.
The Complainant had a workplaceaccident on 8th July 2015, as a result of which he was absent due to his injuries. The Respondent paid him until 25th August 2015.
The Respondentcontended that the Complainant’s employment was terminated due to the lack of work and accordingly he was made redundant. The Complainant denied this contention and submitted that he was dismissed because he had initiated personal injury proceedings he initiated against the Respondent on 10thSeptember 2015.
Summary of the Respondent’s Position
Mr David Boughton, B.L., instructed byBowler Geraghty & Co Solicitors, on behalf of the Respondent stated thatthe Complainant was working on a construction contract inDalkey in July 2015. On 31st July 2015 as the contract was nearing completion and the Respondent did not have any further contracts secured at that time, the Complainant was placed on protective notice by letters dated the 31st July 2015 and 11thAugust 2015.
As a result of his accident at work, the Complainant was absent from the site from 8th July 2015. The Respondent paid him full pay until 25th August 2015.
Mr Boughton stated that the Respondent’s owner and Managing Director, Mr John Murnaghan, was in communication with the Complainant throughout the entire period he was off and that the Complainant was aware of the absence of any future work. He said that when the Managing Directorreceived a letter from the Complainant's Solicitor initiating legal proceedings against the Respondent regarding the workplaceaccident, this resulted in a cessation of direct communication from the Managing Director to the Complainant.
Mr Boughton referred to a text message from the Complainant on the 16th October 2015, staying:"Heya John bren here I'm finished with the hospital and docs this week if there's any work will you let me no as soon as you can if not if need to a p45 thanks".On foot of this, the Respondent's accountant provided the Complainant with his P45 by email on 19th October 2015.
Mr Boughton submitted that there was nothing unusual in the termination of contracts in the construction sector where an employer is not in a position to provide further work. The Complainant was not the only person given protective notice and whose contract was terminated. At all times,the Complainant was aware that there was no further work available. He was dismissed by reason of redundancy. He was not eligible fora redundancy payment as he had less than 104 weeks' service.
Mr Boughton outlined a summary of legal position, as follows:-
- Section 6(4)(c) of the Unfair Dismissals Act 1977 (as amended) provides that the dismissal of an employee shall not be an unfair dismissal if it results whollyor mainlyfrom the redundancyof the employee.
Section 7(2)(b) of the Redundancy Payments Act 1967 (as amended) provides that an employee shall be taken to have been dismissed by reason of redundancyif the dismissal was wholly or mainly attributable to the fact that the requirements of thatbusiness 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.
Section 7(1) and (5) of the Redundancy Payments Act 1967 (as amended) provides that the requisite period of employment for the purpose of qualifying for a redundancy payment is 104 weeks.
Section 4 of the Minimum Notice and Terms of Employment Act 1973 (as amended) provides that an employee with less than twoyears’ service shall be given one week's notice of termination of his employment.
Section 6(3) of the Unfair Dismissals Act 1977 (as amended) provides that where the circumstances constituting the redundancy applied equally to one more other employees in similar employment who have not been dismissed,then unfair selection or failure to follow an agreed procedure,can render that dismissal unfair.
Evidence Given on Behalf of the Respondent
- Evidence of Mr John Murnaghan, Owner and Managing Director
Mr John Murnaghan told the Court that having had many years’ experience in the construction industry, he set up a construction company in January 2014. At the outset he employed Mr Kennedy as a foreman. He had worked with Mr Kennedy on a number of occasions in the past. Then on 1st March 2014 he employed the Complainant as a general labourer. He proceeded to take on an additional five employees as needed. The company’s first contract was in Sandycove, Dublin and this lead to another contract in Dalkey. In between there were a number of small contracts. He said that the initial contract in Dalkey was expected to take two to three months but that the client added a number of jobs. He said although he was making strenuous effort to secure new contracts, he had been unable to do so; therefore he had to let employees go. He said that when the bricklaying was complete he let the bricklayer go and similarly as the carpentry work was complete, he let the carpenter go. He said that he verbally informed the employees, including the Complainant, that he had no further contracts and therefore that they would have to be let go after the Dalkey contract. He said that all employees knew that the job was coming to an end and that he had not enough work thereafter to continue to employ them, including the Complainant. He sought advice from his Accountant, who advised him to issue protective notice to the employees. The Accountant prepared the letters for employees and emailed them to him; he signed the letters and posted them out. He said that the Accountant held details of the employee’s addresses. Mr Murnaghan sent the letters giving protective notice to all employees between the end of July 2015 and the beginning of August 2015, including the Complainant. These letters gave specific dates when the employees would be made redundant.
Mr Murnaghan said that when the Complainant had his accident he decided to pay him his wages and regularly met up with him in various locations to give him his pay cheque. He said that while he was not obliged to pay him and was advised not to do so, he decided to pay the man as he had family commitments. The Respondent also paid the Complainant monies it received from the Department of Social Protection. Such payments are made to employers by the Department where in circumstances where an employer pays full pay to an employee who is out injured and signs up for Injury Benefit from the Department. It is paid directly to the employer instead of to the employee.
Mr Murnaghan said that when he received the letter dated 10th September 2015 initiating legal proceedings, he decided to cease direct contact with the Complainant and to leave matters in the hand of his Solicitors.
Mr Murnaghan said that if he had secured work he would have taken the Complainant back and on that basis was making enquires as to the injury to his hand, to see when the Complainant could return to duties in the event that he secured work. He said that he could not be precise on the dates when the Dalkey contract finished, however, he said that both he and Mr Kennedy were working on snagging issues in Dalkey into September/October. He said that while he secured a number of very small jobs thereafter, it was not until February 2016 that he secured a sizeable contract, with the result that Mr Kennedy was laid off from November for three months.
Mr Murnaghan said that that he had high hopes for the Complainant, he was employed for one year and seven months and hoped to keep him on, however, the work was not there for him.
During cross-examination, Mr Murnaghan was questioned about the protective notice letters, which the Complainant said he never received. The witness said that he signed the letters emailed to him from the Accountant and put them in the post. He said that he was not aware of where the Complainant lived and as far as he remembered he had never been to his house. The address he posted the letter to was supplied by the Accountant. He said that during the Complainant’s absence he meet him on a number of occasions to pay him his wages. These encounters were always at the behest of the Complainant and were usually in petrol stations around Tallaght.
Evidence of Mr Martin Kennedy, Foreman
Mr Martin Kennedy said that Mr Murnaghan rang him in 2014 and asked him if he was interested in coming to work for him in his new construction company as a Foreman. He said that he worked on the Sandycove site, some smaller sites and also on the Dalkey site. He said that he was aware that the Dalkey contract was coming to an end and he was concerned as to where the next job would be. He said that he received a protective notice letter through the post at his home. He was kept on to do snagging work in Dalkey whereas all other employees were let go. When the work was completely finished in Dalkey, he was kept on to work on minor jobs and was then laid off for about three months until he started back at work around January/ February 2016.
Evidence of Mr David Ring, Broderick Kelly Ring & Co, Accountants
Mr David Ring told the Court that he is the Accountant and Tax Agent for the Respondent. He said that in July 2015 Mr Murnaghan had high expectations of securing further contracts. However, due to the level of overheads and as the work was not sustainable, he advised him to issue protective notice to employees. He said that his colleague prepared the letters and emailed them to Mr Murnaghan. Addresses for the employees were obtained from the information they supplied to the Revenue Commissioners. He said that the Complainant’s P45 was sent out to him after he requested it.
Summary of the Complainant’s Case
Mr Andrew J King, B.L., instructed by Séan Costello & Co. Solicitors, on behalf of the Complainant,contended that the Complainant was unfairly dismissed as at the time of his dismissal the Complainant was given no notice and no reason for his dismissal. He submitted that any belated attempt after the fact by the Respondent to manufacture a redundancy type situation was entirely bogus and a sham. Furthermore, he contended that the reason the Complainant was dismissed was due to the personal injury proceedings he took against the Respondent.
Mr King submitted that the Complainant was neither notified in writing or
orally prior to his dismissal of a risk of termination. He said that the Complainant was never issued with protective notice and there was no mention of redundancy.
Mr King submitted that the Respondent was attempting to predate the dismissal to the issuanceof personal injury proceedings on 10th September 2015 in order to disguise the real motivation for the dismissal. He contended that the Respondent’s actions in paying the Complainant while out injured contrary to advice was done as a commercial imperative in the hope that the Complainant would not issue proceedings which would have the effect of increasing the Respondent’s insurance premia.
Mr King made reference to the text message from the Respondent to the Complainant on 24th August 2015. The text messageread
- 'Hi Bren just wondering how your hand is. We are looking for work at the moment but do you think you will be ableto work in the next month or so?'
He contended that this was a deliberate and cynical attempt to recast the factual circumstances in order to falsely convey that there was no work available with the Respondent for the Complainant in August and September 2015. Alternatively, he contended that it was not a general enquiry as to availability for work in the marketplace but a clear indication that the Respondent itself had work for the Complainant in late August into September/October 2015 but once it received a letter of claim dated the 10thSeptember 2015 the Complainant was never contacted again and was unfairly dismissed by the Respondent. Mr King said that once the Complainant issued proceedings he was ignored and refused work leaving him to request his own P45.
Mr King said that it was not until June 2016 that the Complainant finally managed to find work after he had been unfairly dismissed the previous October despite serious bona fide attempts by him to find work.
Evidence of the Complainant, Mr Brendan Flanagan
The Complainant told the Court that he had given his address at Jobstown, Tallaght to the Revenue Commissioners. He had given his mother’s address to the Department of Social Protection (Fortunestown Lane, Tallaght) and he lived with his partner and children at an address in Fettercairn, Tallaght. He said that he could not remember what address he had given to the Respondent.
He told the Court that he commenced employment with the Respondent on 1stMarch 2014. His first job was working on the Sandcove contract, then he has some other minor jobs in Ballyfermot and Clondalkin, before he stated work at the Dalkey site. He said that there was no chat about how long it was going to take and that the client added a number of extra jobs to the contract. He said that when he had his accident on 8 July 2015, there was still a substantial amount of work to be done.
The Complainant said that he had never received any protective notice letters from the Respondent. He accepted that he had not given a change of address details to his employer. He said that when he met Mr Murnaghan to collect his wages cheque, these meeting took place at various locations near his home however, on one occasion Mr Murnaghan had come to his address at Fettercairn, while they did not go inside he said that he arrived at the house. He was not sure but thought this was on 22nd July 2015. He said that redundancy was never mentioned at these meetings.
He said that by 16th October 2015 his injuries had recovered, he was available for work and he assumed there would still be work available at the Dalkey site. He made enquiries of Mr Murnaghan but got no reply other than his P45.
Court Findings and Conclusion
The Court must examine whether the dismissal of the Complainant resulted whollyor mainlyfrom the redundancyof his role, as contended by the Respondent or whether it was a reaction to the initiation of personal injury proceedings, as contended by the Complainant.
Having given careful consideration to the submissions made, the oral testimony and the documentation supplied to the Court, it is satisfied that the Respondent issued notice of redundancy to a number of employees, including the Complainant on 31th July and on 11th August 2015. The fact that the Complainant told the Court that he did not receive these letters was not helped by the fact that the Complainant was residing at one address and the correspondence was sent to a different address, the address he supplied to the Revenue Commissioners. At no point did he supply a notification of change of address to the Respondent. It is clear from the copy of the text messages between the Complainant and Mr Murnaghan that they met at various petrol stations in the Tallaght area. However, the Complainant contended that Mr Murnaghan arrived at his current address on 24th July 2015; this was denied by Mr Murnaghan. In any event the Court is of the view that it could not reasonably be expected of the Respondent to note the fact that this was a different address than that supplied to it.
The Court was supplied with copies of two protective letters informing the Complainant (and copies of similar letters to other employees at the same time) that his position was being made redundant on 7th August 2015 and the second letter stated 18th August 2015. The letters are clear as to the reasoning for the redundancy -“due to our inability to secure new contracts at present”. The Court has no reason to doubt that these are copies of the letters created and sent out at the dates specified on the letters, i.e. 31st July 2015 and 11th August 2015, as the Court was supplied with evidence to show that they were emailed from the Respondent’s Accountants on 30th July 2015. While it is not unreasonable for the Complainant to submit that he did not receive these letters, in the circumstances, the Court is satisfied that that was not the fault of the Respondent. Moreover, it is clear from the texts sent by the Complainant to the Respondent that he also was unclear as to the prospect of future work.
The Complainant was paid his normal wages post his accident until the date of his redundancy as notified in the Respondent’s letter, this also included two weeks’ holiday pay. Over and above those payments he was given an amount of €689.30 which was monies correctly paid to the Respondent from Department of Social Protection. This money was handed to the Complainant on 25thAugust 2015.
It is clear to the Court that the termination of employment was initiated for all employees, including the Complainant, at the end of July 2015, long before the Complainant initiated his personal injuries proceedings against the Respondent. The Court is satisfied from the evidence given and the information supplied that there was very little work available from the end of the Dalkey contract until the commencement of a new contract in February 2016; the Complainant was not fit to work from 8th July 2015 until almost the end of October 2015, by which time there was no work available for him.
In all the circumstances of this case, the Court is satisfied that the Complainant’s employment came to an end in August 2015 due to the diminishedrequirements of theRespondent’sbusiness and that this situation applied to other employees of the Respondent at the same time. The only employees kept on for a short time later were Mr Kennedy, who had longer service than the Complainant and an apprentice, and then Mr Kennedy was laid off for a period of three months until a new contract commenced in February 2016.
Determination
The Court finds that the Complainant was dismissed due to redundancy and therefore finds that the Respondent has not contravened Section 6 (4) of the Acts.Having concluded that a genuine redundancy situation existed in this case, the Court is satisfied that redundancy was the main reason for the dismissal of the Complainant.
For the reasons set out herein, the Respondent’s appeal is allowed and the Decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd May 2017______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.