ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006177

Parties:

	Complainant	Respondent
Anonymised Parties	A Credit Controller	An Automotive Parts Distribution Company.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-001	25/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-002	25/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00008417-003	25/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008417-004	25/11/2016

Date of Adjudication Hearing: 14/09/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994 ; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The case concerned an individual employee who was principally disputing whether or not her alleged Redundancy from the Respondent Employer had been a genuine Redundancy or had been an Unfair Dismissal.

The Legal Representative for the Complainant made a detailed legal submission at the oral hearing concerning the proper legality of the procedures adopted by the Respondent. In this he relied heavily on a Judicial review case from the High Court - Michael Lyons and Longford Westmeath Education and Training Board. [2016 No.708 J.R.] [2017] IEHC 272.

For convenience in this Adjudication I will refer to this case as the “Lyons case”

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary of Complaint.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-001	Statement as required under Section 3 not provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-002	Statement as required under Section 5 not provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00008417-003	Withdrawn at the Hearing.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008417-004	Dismissal automatically unfair as Respondent procedures were not in keeping with Natural Justice and good law. Detailed legal arguments were advanced regarding the implications of the Irish High Court JR case. Michael Lyons and Longford Westmeath Education and Training Board. [2016 No.708 J.R.] [2017] IEHC 272.

2: Summary of Respondent’s Case:

Act	Complaint/Dispute Reference No.	Summary of Respondent Arguments.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-001	A detailed Contract of Employment was provided to the Complainant. If there were any omissions as regards Breaks, Sunday Work or the Annual leave Year as alleged they were minor and technical. They had no financial or work consequences for the Complainant. The Complaint should be dismissed as trivial and of no consequence. Reference was made to a number of Labour Court decisions such as (Hall v Irish Water TED161) in this area that adopted this approach.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-002	Statement as required under Section 5 not provided. This complaint arises from a minor change in Name of the Company a number of years ago. It had no financial or work consequences for the Complainant. The Complaint should be dismissed as trivial and of no consequence.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00008417-003	Withdrawn at the Hearing.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008417-004	Dismissal automatically unfair as Respondent procedures were not in keeping with Natural Justice and good law. The Respondent relied on all proper procedures being followed, detailed evidence was given of meetings and initial and subsequent Appeal Hearings. At the Oral Hearing it was maintained that the Legal representative for the Complainant was placing an inappropriate reliance on the Judicial Review case The Lyons case being cited.

3: Findings and Conclusions:

Section 3:1
Act	Complaint/Dispute Reference No.	*Adjudicator conclusions.*
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-001	A number of minor technical breaches regarding specifications as regards the Annual Leave year, Sunday work and work breaks, were evident. However none were of any major significance.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-002	A minor technical breach was evident regarding the change of name. However it could not be described, by any reasonable observer, as being of a fundamental nature with material consequences for the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00008417-003	Withdrawn at the Hearing.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008417-004	Detailed discussion and considerations are given to this case at Section 3:2 below.

Section 3:2 The Unfair Dismissal case and the legal arguments made.

3:2:1 In summary the Legal representative for the Complainant maintained that the Respondent had not pro-actively advised the Complainant of her alleged rights to have a qualified Legal representative present at all meetings. This had, as a consequence, denied the Complainant of the Natural Justice rights to actively cross examined the Respondent and to seek all materials, documents that an experienced Legal representative would feel were required. In addition any redundancy settlement concluded without the benefit of a Legal representative present during the proceedings was equally legally flawed. Extensive reliance with considerable extracted quotations was placed on the Irish High Court JR case Michael Lyons and Longford Westmeath Education and Training Board. [2016 No.708 J.R.] [2017] IEHC 272.

3:2:2 It is well accepted law that each case rests on its own merits and specific facts.

In the High Court judicial review case being relied upon the Complainant, a Mr. Lyons, was at hazard of considerable personal and reputational damage arising from most serious alleged internal employment related allegations and investigations.

It would be a considerable legal elasticity to consider that the case in hand in this Adjudication (A Procedural /Redundancy Dismissal) is even approximately in this league.

On a factual basis I noted that the Complainant never requested Legal representation and if they had done so the Respondent stated at the Oral Hearing that they would have considered the request. They had an open mind on the matter. The Respondent had offered by letters of the 13^th October 2016 and at the Appeal stage (letter of the 28^th November 2016) representation by a Colleague or a Trade Union Official. The Complainant had declined both options and was happy to proceed independently.

The question of rights to Legal representation was considered extensively by the Irish Supreme Court in Alan Burns and John Hartigan (Applicants) and the Governor of Castlerea Prison (Respondent) Record No.132/06. . In this case the Irish Supreme Court made reference to the case of R.v.Secretary of State for the Home Department ,ex parte Tarrant [1985] 1 Q.B.251 . “the Tarrant case”

In the Tarrant case, referred to strongly by the Supreme Court, Webster J. set out a basic almost common sense set of questions to be asked when considering the question of rights to legal representation.

These were

1: the seriousness of the charge and the potential penalty

2: whether any points of law are likely to arise

3 the capacity of a particular prisoner to present his own case.

4: Procedural Difficultly

5: the need for reasonable speed in making the adjudication, that being an important consideration.

6: the need for fairness as between prisoners and as between prisoners and prison officers.

Applying these tests to any comparison between the current Adjudication and the Lyons case a reasonable observer would have difficulty finding any reasonable grounds for a similarity such as to allow the Lyons case be used as a relevant precedent in this Adjudication.

As such I felt that it was an inappropriate case to be relied upon by the Complainant in this case.

The Supreme Court at page 9 of their decision referred to above Alan Burns and John Hartigan (Applicants) and the Governor of Castlerea Prison (Respondent) Record No.132/06. stated

“I would reiterate that legal representation should be the exception rather than the rule. In most cases the provisions of the rules (i.e. internal Employment procedures –note added by Adjudication Officer for clarification) will simply apply.

In conclusion, as regards the reliance of the Lyons case by the Complainant, I did not accept the Arguments of the Complainant’s Legal Representative that the Dismissal was by automatic legal application unfair.

3:2:3: Other arguments

The Complainant did not go into evidence relying largely on the Lyons case argument above. However the evidence presented by the Respondent demonstrated a fair application of procedures and notifications. I had some concerns regarding the provision of some background information to the Complainant but in general these were not such as to question the overall correctness of the procedures.

3:2:4

In overall summary I found the Redundancy to be properly conducted and the case for Unfair Dismissal to fail.

4: Decision and Redress

Section 41 of the Workplace Relations Act 2015 ; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to claims consisting of a grant of redress in accordance with the relevant Section of the cited Acts.


Act	Complaint/Dispute Reference No.	*Summary Decisions/ Refer to Section 3 above for detailed Arguments/Conclusions.*
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-001	Claim well founded .A number of minor technical breaches regarding specifications as regards the Annual Leave year, Sunday work and work breaks, were evident. Redress of €100 Euro be paid to Complainant
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008417-002	Claim well founded .A minor technical breach was evident. Redress of €100 Euro be paid to Complainant
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00008417-003	Withdrawn at the Oral Hearing
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008417-004	Claim not well founded. Claim of Unfair Dismissal dismissed.

Dated: 20.11.2017

Workplace Relations Commission Adjudication Officer: Michael McEntee