ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009855
Parties:
| Complainant | Respondent |
Parties | A Laboratory Manager | A Consulting Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00012963-001 | 08/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012963-002 | 08/05/2017 |
Date of Adjudication Hearing: 14/09/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 Complainant alleged he was not redundant but was unfairly dismissed and also suffered penalisation. |
Summary of Complainant’s Case:
In the interests of brevity, the two penalisation complaints can be taken together and seen as a continuum.
In his first submission to the WRC the Complainant has outlined how, when he raised the question of restoration of his terms and conditions which he was promised he was penalized. The company used this to refuse to reinstate his terms and conditions.
As a result of his seeking restoration of his prior conditions of employment, he was overworked and his health was undermined. His employer caused him and permitted him to work excessive hours and without adequate rest periods. He was excluded from management decisions at his business unit, and excluded from the management of the (a Town) job and the revenue associated with the (a Town) job was taken to make it look that his section of the company was losing money which is not the case. The (a Town) job was a site laboratory set up by the Complainant for the Respondent for road materials testing on the (b Town) to (c Town) Motorway project.
This had the effect of undermining his position and was used by the company to prevent re-establishing his terms and conditions. The Complainant will refer to, and inter alia rely on, the minutes of the HR meeting with his Manager (named) , of 9th February 2016.
In support of this complaint – the Complainant submits in his booklet of documents :
Outline the terms he was promised. Illustration of the reaction to the requests for re-instatement of terms and conditions. [minutes 9/2/2016] Outline of the hours he was required to work in the period May 2015 to February 2016, with the rolling 4 and 6 month averages persistently exceeded the 48 hour limit. He was worked 52 days in total between 8 July 2015 and 28 August 2015 with only one day off – the bank holiday. The MHC invoice . Medical Reports
Penalisation was the result of, or compounded by, the approach of Mr. X , about whom Complainant made a bullying complaint orally to the HR Manager on 18th September 2015, and the approach of Mr. Y to him (reflected in the Minutes of the meeting of 9th February 2016).
In acting as they did, and in failing to ensure that the complaint did not work persistently hours in excess of the maxima laid down , and in failing to ensure sufficient rest days, the Complainant says that the Respondent breached section 27 of the Safety, Health and Welfare at Work Act, 2005. (SHWWA).
These actions caused the Complainant work related stress, and required his being sent to hospital for tests. The Respondent’s actions severely impacted the Complainant’s health and wellbeing, and detail of that damage are set out in the medical reports [Tab 7]
The Complainant seeks a determination that he was penalised in breach of the SHWWA in the manner he was treated in the period prior to his initial complaint to the WRC in March 2016
He also seeks a determination that he was penalised by the conduct of his employers in the subsequent period prior to his function being declared redundant on 24 April 2017.
And the Complainant seeks appropriate financial compensation for these wrongs.
With regard to Unfair Dismissal - the “Redundancy” These actions led to, and culminated in his being unfairly selected for a contrived redundancy, which he maintains was being planned since in or about his initial appearance at the WRC.
It is the Complainant’s case that the redundancy was the culmination of the saga of the original penalisation, and penalisation subsequent to his appearance before the WRC.
The redundancy was an unfair dismissal because:
The redundancy was the culmination of systematic penalisation of the Complainant, arising from the request that his terms of employment be restored (the first penalisation complaint) and The subsequent and further penalisation, (the second penalisation complaint) arose following his efforts to have the matter resolved by the WRC. This involved undermining his role and authority, withdrawal of work, and ultimately selection for redundancy by an unfair process. He was preselected by the actions of his employer. The re-organisation of management was done against a background of withdrawing all work from the Complainant The consultation was a sham Against this background the redundancy process was inherently flawed and unfair. No clear policy or criteria for selection of redundant persons was set out. The withdrawal of work from the Complainant was planned, was penalisation of the Complainant due to his efforts to assert his rights under his terms of employment and under legislation, and was not the result of any genuine reorganisation of management. His redundancy was engineered. The Complainant was unfairly selected The bone fide of the decision is undermined by the conduct of the decision makers towards the complainant. The redundancy process in the case of the Complainant was unfair – it was ever only going to have one outcome. No economic case was ever established– the management work that needed doing, and continues to need doing, could as effectively be done by the Complainant, as by persons in the UK. This outcome was predetermined before the consultation. The selection of Complainant was disingenuous was unfair. The consultation did not afford adequate time (collective redundancy – 30 days) the procedure adopted was unfair. The offer of alternative employment was made illusionary in circumstances where the Complainant had been told that the senior technician role in (a Town) had been filled. There were no redundancy procedures notified or included in the Complainant’s terms and conditions of employment in 2001 or 2011.
It should be noted that the Complainant who was the sole resident director of the Irish company was not consulted regarding the intended reorganisation of the business, rather it was presented as a fait accompli.
The Complainant claims that the redundancy constituted an unfair dismissal.
The Complainant has a contemporaneous note of the events leading up to his dismissal and will present that note at Hearing.
By acting as they did the Respondent breached their duty under the Unfair Dismissals Act, 1977. The Complainant asks for a determination that the Redundancy as, in effect, an Unfair Dismissal.
The actions they took further damage his health and welfare, and in that regard they breached their duty to him under the terms of the HWWA 2005.
The Complainant was the senior employee of long standing with the company in Ireland. He was a director of the company. He was not consulted prior to decisions being made on re-organisation or redundancy.
The Complainant is seeking a determination from the Commission’s adjudicator that in acting as it did the Employer.
penalised the Complainant in the manner he was treated in the period prior to his initial Complaint to the WRC in March 2016 in a manner that breach the SHWWA 2005
penalised him in the subsequent period including the process of his role being declared redundant. That that process also breached the employers duty under the Act, and
In the circumstances the Complainant was Unfairly Dismissed
The Complainant seeks financial compensation for the Unfair Dismissal and the breaches of the Safety Health and Welfare at Work Act. 2005.
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Summary of Respondent’s Case:
Subsequently, to his first claim for penalisation and other claims, the Complainant issued two further claims against the Respondent namely, a second claim for penalisation under the 2005 Act (the “New 2005 Act Claim”) and a claim for unfair dismissal under the Unfair Dismissals Acts, 1977-2015 (the “Unfair Dismissals Acts”) (the “Unfair Dismissal Claim”) (CA0001293-001 and CA-00012963-002 respectively).
It is submitted that the claims which have been withdrawn, being the claims under the 1994 Act, the 2003 Regulations and the 1997 Act and the facts relating thereto cannot be introduced in the First 2005 Act Claim and/or the New 2005 Act Claim and/or the Unfair Dismissal Claim as this amounts to an abuse of process in circumstances where these claims have been withdrawn and not pursued. It appears from the complaint forms in respect of the new claims,, that the Complainant will seek to raise allegations relating to exclusion from management decisions, undermining of position an alleged revenue being taken from the (a Town) job to make his department look like it was losing money and his terms and conditions of 2011 not being reinstated as part of his claims. These are facts which were sought to be relied upon in the withdrawn complaints.
The Complainant cannot seek to rely on the facts as per the withdrawn claims and seek relief in respect of those facts in circumstances where those claims were not pursued. The Complainant cannot seek relief where those claims were withdrawn. Otherwise this amounts to a breach of Henderson v Henderson or an abuse of process. In Re Vantive Holdings[1], Chief Justice Murray provided a useful summary of the ‘Rule in Henderson v. Henderson’, as the central case is known, in noting that:
“The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the court for adjudication and will not afterwards be permitted to reopen the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case. In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate.
Viewing it through the prism of estoppel and res judicata the rule in Henderson v. Henderson (1843) 3 Hare 100 strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings…. Underlying the rule in Henderson v. Henderson (1843) 3 Hare 100 is the policy of the need to protect the due and proper administration of justice from an abuse of process and uphold the principle of finality in legal proceedings.”
The Labour Court, in its recent decision of Sorenson v Teagasc[2], refused to allow facts which were argued in a claim under the Employment Equality Acts to be argued in a claim pursuant to the Employment Equality Acts in circumstances where they had been put before the Workplace Relations Commission (the “WRC”) and Labour Court in a claim under the Protection of Employees (Fixed-Term Work) Act 2003.
It is submitted that as the Complainant had the opportunity to seek relief in respect of the 1997 Act, 1994 Act and 2003 Regulations claim but chose not to pursue them and instead pursue them in the High Court in the context of the Personal Injuries Proceedings. Therefore it is submitted these claims should be re-opened as finality in respect of the statutory claims and their facts was achieved by their withdrawal such that the rule in Henderson v Henderson will be breached if the facts grounding those claims are sought to be introduced.
In addition, if the Complainant continues with his two 2005 Act claims and the Unfair Dismissal Claim, the Respondent reserves the right to raise objections to any facts which have been adjudicated upon and put before the WRC being subsequently pursued in the Personal Injuries Proceedings. In this regard, it is submitted that any attempt to do so in the High Court will amount to a collateral attack on the decision of the WRC and will be vigorously opposed. In this regard, reliance is placed on the recent Court of Appeal decision in Culkin v Sligo County Council.[3]
In respect of the New 2005 Act Claim and the Unfair Dismissal Claim, in substance these claims are identical and this is evident from the complaint form and the Complainant’s Submissions dated 8 September 2017. In fact, the scant details of the complaint under the Unfair Dismissal Acts refer to penalisation which must relate to the New 2005 Act Claim. Section 24(5) of the Health, Safety and Welfare at Work Act 2005 prevents recovery in respect of a claim under that act where the dismissal is allegedly penalisation under the 2005 Act and also the dismissal is allegedly unfair within the meaning of under the Unfair Dismissals Acts.
(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
It is respectfully submitted that the Complainant, should therefore, elect between his the New 2005 Act Claim and the Unfair Dismissal Claim.
The Unfair Dismissal Claim andthe New 2005 Act Claim
The Claimant has been called upon to provide details of his alleged penalisation complaint, including any documentation relating thereto, but has not provided such information. The Respondent, therefore, reserves the right to provide further submissions as required. Given the entire overlap between the Unfair Dismissal Claim and the New 2005 Act Claim, the Respondent herein sets out its position for both herein. The Complainant verbally raised an issue with the Respondent’s then HR Regional Manager regarding his working hours in September 2015 on the basis that he was required to travel to the (b Town) to (c Town) project ( (a Town) for the (the “XYZ Project”). This necessitated him spending time away from his family home. HR Regional Manager emailed the Complainant advising him that he could raise a grievance. The Complainant did not raise a grievance. It is submitted this was not a protected act within the meaning of the 2005 Act as it related to issues of the Complainant being away from home and not any health and safety issue or any complaint relating to a safety, health and welfare at work matter as prescribed within section 27(3) of the 2005 Act.
Following a discussion with the Complainant and HR Regional Manager, the Complainant was no longer required to undertake any duties of employment on the XYZ Project. The Complainant was informed that if he wished, he could stay overnight in (a Town) . This has been previously suggested by Mr X of the Respondent in an email of September 2015 which is attached at appendix 11 to the preliminary submissions of the Complainant.
At the outset, the Respondent wishes to make it clear that there was no contrived redundancy as alleged or at all and rather the Complainant’s employment terminated on 31 March 2017 by reason of redundancy and he was afforded 12 weeks’ notice as is clear from the letter of 24 April 2017.
The business of the Respondent in Ireland can be categorised as two main operations. The XYZ Project which was a long term contract and the base operations in (the Complainants place of employment).
The financial challenges faced within the (the Complainants place of employment) premises from where the Complainant worked as a Laboratory Manager were discussed with the Complainant on numerous occasions. For example in a meeting on 9 February 2016, Mr Y Managing Director, discussed with the Complainant that the (the Complainants place of employment) laboratory had generated a loss of €111,459 in 2014 with a profit of €180,225 (of which €45,000 only related to the (the Complainants place of employment) site) in 2015 and was running a small profit in 2016. Ultimately the (the Complainants place of employment) operation did not return a profit in 2016 and whilst the budget was to return to a small profit in 2017, the first quarter of the year showed a continued loss in the first two months of the year and a marginal profit in the third month. In addition, the landlord of the Respondent’s premises had provided notice to the Respondent on 30 January 2017 and therefore at this time the Respondent was required to seek alternative premises with an increase in rent and costs attached to be incurred. The Complainant was aware of this, having been involved in the task of locating alternative premises. Further, the XYZ Project was due to end in June 2017, with a ramp down in the project and the bulk of the work being completed by 14 April 2017. This would result in the main source of business for the Respondent to reduce significantly with an accompanying lessening in the work of the (the Complainants place of employment) base. There were few prospects of further contracts, similar to the XYZ Project in the horizon. The (the Complainants place of employment) operation would continue but this was a small part of the Respondent’s overall business. The Respondent was no longer purchasing equipment and rather was renting it as the volume of work did not justify the cost of purchasing equipment.
As a result of the foregoing, the shareholder and Mr Y, Managing Director of the Respondent, conducted a review of the Respondent’s operations and its future in Ireland. Following this review, Mr Y determined that it was necessary to consider changing the business model of the Respondent such as continuing operations outside of Ireland and potentially ceasing the (the Complainants place of employment) operation. This was on the basis of the poor financial return within the Respondent’s business. The level and type of work undertaken at the (the Complainants place of employment) site provided small margins, involved high costs but was low value and did not make a consistent profit. It became apparent to Mr X during his review that consideration would have to be taken as to whether the employment of the 15 employees at the (the Complainants place of employment) premises could continue and whether there were any alternatives to redundancy/alternative positions available. The Respondent wished to save as many positions as it could.
On 20 March 2017, 3 Senior Management and the HR Business Partner, attended at the Respondent’s (the Complainants place of employment) premises to brief employees. All 15 employees, including the Respondent attended this meeting. During the meeting, all employees including the Complainant were informed that there was a proposal to close the (the Complainants place of employment) site. The Complainant, like all employees, was informed that his position, which was a standalone position, was at risk. Reference was made to alternative positions and all employees including the Complainant were invited to consider a number of positions which were available. The Complainant did not pursue these roles. Whilst all but two of these roles were UK based, one of these roles, was a newly created Monitoring Project Engineer was designed by the Respondent to retain a position within the country and in an attempt to reduce the numbers of potential job losses. It was put in place on the basis that there was the potential for monitoring contracts to be awarded going forward and the monitoring work had been going well in the UK. Another position of Senior Technician in the (a Town) premises was also available as a vacancy. Details of these positions were made available to the Complainant. The Complainant also informed at this meeting that a consultation period would take place. The purpose of this period was to make any observations, put forward any proposals, any alternatives to redundancy and the selection process. It was made clear that the decision on their future employment was not determined. The Complainant, like all employees, was provided with a letter of that date notifying him of his position being at risk, the consultation process and the fact that no decision had been made. The Complainant was invited to a group consultation with all staff would take place on 21 March 2017 and an individual meeting with the Complainant would take place on 22 March 2017.
On 21 March 2017, the Respondent held and open and transparent group consultation meeting regarding the potential closure of the (the Complainants place of employment) site. The purpose of this meeting was to discuss any questions employees had and to see if any alternatives to redundancy would emerge. The Respondent was anxious to hear the views of all employees, including the Complainant and the floor of the meeting was open to all employees. This meeting was chaired by Mr Y. Mr Y made it clear in this meeting that if a viable operation could be found, there may be a basis for the (the Complainants place of employment) site remaining open. At this meeting, an employee, not the Complainant suggested that the Respondent consider retaining the (the Complainants place of employment) site but on a smaller scale with a smaller lab on the basis of a smaller business model. Ultimately this model was explored by the Respondent and a follow up meeting took place with all employees later than day. Proposals from employees such as downscaling of the business model were discussed. The notes of the two group consultation meetings were supplied.
An individual consultation meeting took place with the Complainant on 22 March 2017. This meeting was conducted by 2 Senior Management. The Complainant was accompanied by a colleague, Ms A.. At this meeting the rationale for the proposed closure of the (the Complainants place of employment) premises and the redundancy of the Complainant’s position were discussed. The Respondent was anxious to hear of any alternatives the Complainant had to redundancy. The Complainant recommended investing in the Respondent, reallocating staff and removing non profitable work. The Complainant was invited to put more concrete proposals to the Respondent, including further detail. He did not do so after the meeting. A copy of the minutes of this meeting are attached were supplied.
By contrast, a number of employees at (the Complainants place of employment) put forward a structured and costed proposal to Senior Management, on the basis of a smaller operation at the (the Complainants place of employment) site based on the UK model and work methods. This involved a restructuring of the (the Complainants place of employment) site remaining operational on a scaled down version with around 5 employees retained. It involved a structure which was similar to that in other remote sites and targeting particular sectors, increasing revenue testing and reducing cost. A team leader runs the site with a UK based operations manager over many sites being in overall control. There are no managers on site. Following this proposal being considered at management level, it was accepted by the Respondent-at board level and the (the Complainants place of employment) premises was not closed as had been proposed. Five employees were retained one as a team leader, the other as an instrument monitoring engineer, one as a foundation engineer, one in administration support and part time technician.
A second consultation meeting was held with the Complainant on 29 March 2017. The Complainant was accompanied by Ms A. This meeting was conducted by Mr X.. The proposal put forward by the staff members was discussed with the Complainant but he did not agree with the proposal. The Complainant confirmed that he had no further proposals to make as an alternative to redundancy. It was also confirmed to the Complainant that he was provided with the list of vacancies to consider. An email the Complainant sent regarding the minutes of the first consultation meeting was also discussed. A copy of the minutes of this meeting were supplied.
Mr Y considered the proposed redundancy of the Complainant and the proposals he had made. As no suitable proposals had been made by the Complainant and there being a need to reduce costs and headcount within the Respondent’s (the Complainants place of employment) site, the decision was made that the position of the Respondent, Laboratory Manager, was redundant. The Complainant was informed of this at the meeting of 31 March 2017. 10 out of the 15 employees employed at the (the Complainants place of employment) site had their employment terminated by reason of redundancy at this time and the (the Complainants place of employment) premises continues to operate on a smaller scale.
On 31 March 2017, the Complainant sought time to consider his thoughts following his being informed his employment would terminate by reason of redundancy. He returned and sought an ex gratia package. A copy of the minutes of this meeting were supplied.
The Complainant was informed of the termination of his employment by reason of redundancy on 31 March 2017. Following clarification being sought, he was provided with 12 weeks’ notice. This employment ceased on 25 April 2017 as the Complainant requested not to work his notice period, a request which the Respondent granted.
In the letter of termination of employment of 31 March 2017 , the Complainant was offered the opportunity to appeal the decision to terminate his employment by way of redundancy. He failed to take up this offer. The Complainant was paid the statutory redundancy together with a payment in lieu of his notice entitlement.
Legal submissions It is submitted that the Complainant’s employment terminated fairly, wholly and mainly on the basis of the redundancy. The Complainant has not been replaced and his position remains redundant. The Complainant was one of a number of employees who had their employment terminated by reason of redundancy by virtue of the need to streamline the operations within the (the Complainants place of employment) site, cut costs and to continue it on an operationally different manner with less employees. Accordingly the Respondent relies on section 7(2)(c) of the Redundancy Payments Acts 1967-2016 which prescribes: “an employee shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to – (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.”
There was no contrived redundancy and there was no unfair selection for redundancy as the Complainant asserts on his complaint form. Section 6(4)(c) of the Unfair Dismissals Acts upholds redundancy as a fair reason for dismissal. Insofar as any unfair selection for redundancy section 6 (3) of the Unfair Dismissals Acts sets out how unfair selection for redundancy may arise. This arises only where one or more other employees are in similar employment with the same employer who has/have not been dismissed, and either the selection of the employee for redundancy was wholly or mainly for one or more of the prescribed unfair grounds for dismissal in section 6(2) of the Unfair Dismissals Acts or the dismissal was in contravention of an agreed procedure between the employer on the one part and the employee or a trade union on the other part or in contravention of a procedure established by custom and practice and there were no special reasons justifying the departure from the procedure. This cannot arise on the facts as there is no basis for any selection of the Complainant being on any of the automatically unfair grounds within section 6(2) of the Unfair Dismissals Acts. In addition, the Respondent did not operate any redundancy selection procedure other than for the part time technician role as there were two applicants for this role. In those circumstances, this claim must fail as it is submitted once the Adjudication Officer is satisfied that (a) redundancy was the reason for redundancy and (b) no unfair selection within the meaning of section 6(3) of the Unfair Dismissals Acts occurred. Reliance is placed on the decisions of McNally v Westwood[4] and the more recent decision of Curtin v Mallow Golf Club.[5]
In terms of the procedures adopted, which is submitted is not relevant in a claim of alleged unfair selection for redundancy, in the decision of Jeffers v DDC Ireland Ltd UD 169/2000, the Employment Appeals Tribunal said that, where a person was being made redundant, there was an onus on the employer “(i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant”. The Respondent adopted a fully transparent approach. The Complainant was informed of alternative positions available and the Respondent created a new position to retain the employment of an employee. The Respondent held two group meetings, two individual consultation meetings with the Complainant, considered his proposal-which he did not provide any concrete submission in respect of, provided information on alternative positions and did not determine the necessity for redundancy of the Complainant’s position until consultation, engagement with the respondent and consideration of his proposal had taken place. The Respondent considered alternatives to redundancy and consulted extensively with the Complainant. The outcome was not preordained and in fact this is corroborated by the fact that a detailed proposal from a group of employees on a smaller scale operation of the (the Complainants place of employment) premises was accepted by the Respondent, the premises in (the Complainants place of employment) was not closed and some employees remained in employment. By contrast to the engaged approach of the Respondent, the Complainant did not participate in the consultation process in a meaningful way and was abrupt during his meetings with the Respondent. The Complainant failed to offer any substantive proposal to retain his employment, disagreed with the proposal put forward by employees of the Respondent, sought an ex gratia payment and did not appeal the decision to terminate his employment by reason of redundancy. The employees retained were all in positions below that of the Complainant and were on significantly lower salaries.
Insofar as the Complainant alleges he was targeted for redundancy, this cannot arise on the facts in circumstances where a strategic decision was made by the Respondent following a review to look at the operations of the (the Complainants place of employment) site for financial reasons. The necessity to move premises was another factor which caused a need for a review. There was no connection between this review and any alleged targeting of the Complainant which cannot arise on the facts. In total ten employee had their employment terminated by reason of redundancy.
Insofar as any penalisation is asserted by the Complainant, in circumstances where the alleged protected act for the purposes of the 2005 Act took place in 2015 and his employment was not terminated until April 2017, alongside other employees by reason of redundancy and for genuine reasons, this cannot be sustained. It is submitted that there is no basis for the contention of the Complainant that he was penalised, by way of dismissal, in retaliation for having raised health and safety concerns in 2015. The passing of time breaks any causal link and in addition, the Complainant cannot meet the ‘but for’ hurdle.
Section 27 of the 2005 Act provides as follows:
In terms of establishing penalisation within the meaning of section 27 of the 2005 Act, it clear that the Complainant must establish that he was subjected to detrimental action in the form of dismissal by the Respondent as a result of his having asserted his rights pursuant to the 2005 Act. In this regard, reliance is placed on the decision of O’Sullivan v Toni & Guy Blackrock Limited [2013] 21 E.L.R. 1 where the necessity for a causal link in claims of penalisation pursuant to the 2005 Act was established. The Labour Court held as follows in that decision: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent. … Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.”
The Complainant cannot establish any such causal link between any protected act and dismissal.
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Discussion and Conclusions
At the Hearing both sides elaborated on their written submissions.
The Complainant stated he did receive a redundancy payment but held on it as he needed the funds. He also received payment in lieu of notice.
The question of whether any formal grievance was lodged was debated and it seems that any complaint was lodged verbally. The Complainant stated he had approximately six reports. He stated he was threatened with the sack if he went on holidays...the Respondent denied this and stated he was only refused one day’s holidays. The Complainant stated all other units had a sales and marketing person but he didn’t and that he had lost the QA Mgr role. He stated he was removed from being a Trustee of the pension fund. He stated process improvements he suggested were ignored. He stated he was not made aware of or asked to apply for a Technical Audit role. He stated certain charges in 2017 were moved below the line when in 2016 they were above the line to make his section look bad. He said he was the only employee not to have an appraisal. He was told he was not doing his job. He said he did raise a grievance in writing but there was a slow reply. He said he was excluded from meetings and his Manager meet with the Complainants direct reports without the Complainant being present. He said he was not consulted on a 1,000 Euro bonus for one of his staff. He said staff were hired without him being consulted. He said he got intimidatory calls from two Directors and felt “there was a dark cloud” hanging over him. He refused to sign minutes as it felt like a disciplinary meeting. He felt his location was ‘set up” to support (b Town). He felt he turned the operation from a loss making one to a profit. He felt the profitable location of (b Town) was removed from him. He did agree that in 2016 he was given a mid range Jeep. He felt he was being denied the fruits of his efforts.
In response the Respondent stated they felt the whole situation put forward by the Complainant was utterly misconceived and that effectively he was trying to run a P.I. case and his response to incidents were ‘overcooked”. It was accepted that he raised an issue re the (b Town) job but that he was no longer required to work there by agreement as he had problems travelling and being away from home. The Complainant had medical issues in 2012 and 2014 and these predate his claim and prove that any issues he has were not caused by the Respondents alleged actions. The Complainant submitted four other claims and these were all withdrawn by him as they were also not legitimate or valid. The one time he was refused a holiday was when he had taken three days annual leave after medical leave and was needed at the business. No specific dates were given by the Complainant of any of the alleged prohibitive acts and regarding the intensity of his work in 2014 there were issues with equipment. There was no change to the style of accounting and (the Complainants place of employment) was only the base site with the (b Town) site being the main contributor to the business.
In 2017 there was small a profit in (a Town) and a loss in (the Complainants place of employment). At his instigation he did not want to work on the (b Town) site. On the restoration of pay his claims are not backed up..his pension was reinstated and he got a jeep in Jan 2016. The company was not in a position to restore his pay. No other contracts were coming in and the Respondent looked at closing (the Complainants place of employment) fully. There were high costs and 15 staff. The company engaged in a consultation process with staff and the Complainant never engaged with this. Other staff proposed alternative ideas but he did not. All (a Town) have now been terminated. 15 staff attended the consultations. There were two proposals on the table for review and consultation. The Complainant did not want to pursue the senior tech role available in (b Town). Staff proposed an alternative for (the Complainants place of employment) to save about 5 jobs...this was considered by the Respondent and accepted. This involved no Manager in the (the Complainants place of employment) site. The Respondent agreed with this proposal which had a P and L analysis and sustainable option. The Complainant proposed more money for marketing but did not detail this proposal. Following the consultations the Complainants role was redundant as the Respondent had no role for him and he accepted his redundancy and payment and did not appeal the decision internally. The Complainant did not look for other employment options and the selection procedure for the other 9 redundancies was fair. The process as alleged by the Complainant was not preordained and the move to new premises was dependent on the old building lease running out and was more suited both cost and size wise to the future needs of the business. With regard to the issue which the Complaint raised concerning what was contained in the Respondents solicitor invoice (which the Compliant had sight of) this did not signal any pre plan and was just a manner of listing the conversations had between the Respondent and their solicitors. The Respondent argued that the fee note was privileged.
The Complainant stated that the consultation period only took 8.5 days and that long before the re-organisation the Respondent seemed to be taking work away from him. He stated this was done to support the Respondents plan for his termination due to redundancy and all actions mounted to penalisation. He stated that there was no reality in him applying for the (b Town) positions. He said he was taken off being a Trustee 12 months before the redundancy as part of the Respondent overall plan. He said he was never given the opportunity to step down into a more junior but well paid role which was filed by another employee.
The Respondent stated there were nine other redundancies and the Complainant was not singled out and there was no penalisation in the meaning of the Act and the dismissal was due to redundancy and not an unfair dismissal as the business was downsizing and there was no role for the Complainant into the future.
In order for the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened.
The Complainant specific complaint, lodged with the WRC on May 5th 2017 was as follows” The Complainant specific complaint, lodged with the WRC on March 7th 2016, was as follows” I made a complaint that I was overworked and my health was undermined for having to work to long and too intensely. Arising from this, I have been excluded from management decisions at my business unit and excluded me from the management of the (a Town) job and taken associated revenue from the (a Town) job to make it look like my section of the company is loosing money which is not the case, which has the effect of undermining my position and they are using this to prevent re-instating my terms and conditions. I have a complaint of this already to WRC which is listed for hearing on 15/5/17. Since that complaint and my earlier complaint my employer has sought to dismiss me by a contrived redundancy culminating in a redundancy notice on 31/3/17. .
The Complainants employment ceased on March 31st 2017. The above claim is identical to a previous penalisation claim by the Complainant and which is dealt with in a separate decision reference number ADJ 2278 where the Complainants claim failed for stated reasons. This claim is different to the previous claim in that it adds in the complaint section the following” I have a complaint of this already to WRC which is listed for hearing on 15/5/17. Since that complaint and my earlier complaint my employer has sought to dismiss me by a contrived redundancy culminating in a redundancy notice on 31/3/17. .”
The Adjudicator must consider whether there was a causal connection between the complaint made by the Complainant and the dismissal decision described as the result of making that complaint.
No specific written grievance document was available as to the exact date of the complaint made by the Complainant whilst in employment and therefore the only complaint relating to the specific of this claim regarding the additional penalisation of unfair termination of the employment arose after the termination of the Complainants employment, to the WRC.
“In Paul O'Neill v Toni & Guy Blackrock Limited[2010] ELR 21, this Court held that the detriment complained of must have been imposed “for” having committed a protected act within the meaning of Section 27(3) of the Act:
‘The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.’
The Adjudicator has heard evidence of the factors which the Complainant alleges was penalization. While the issue of the protected act itself in this case are somewhat ambiguous and that act being completed is a pre determinant to the resultant alleged penalisation I am going to deal with the issue of penalisation firstly.
Some of the Complainants terms were changed by agreement on September 20th 2011. The Complainant was not unique both internally and nationally in this respect. These changes involved a reduction in pay, a pension contribution holiday, change to the Complainants family medical insurance, and while not documented a change to car policy. The Complainant also alleged he was overworked and his health suffered due to this penalisation. He also stated he had to work to long and intensely, was undermined and the Company refusal to return his terms to pre September 2011 levels were all contributing to penalisation.
It is a fact, from the accounts information provided at the Hearing, that the Respondents Irish business suffered a serious loss in revenue and approximately 9 staff were made redundant and only 6 remained. The Complainant was not able to provide any evident of revenue being transferred from one area to anointer to undermine his main location. Equally, the Complainant provides medical evidence that he suffered from stress in 2012 and 2014, significantly before the Complainant lodged his claim and outside the six month time limit. The Complainant also advised that he had access to a company vehicle at all times and that even though he may have used a company van for a while his company car was restored. In the minutes of meetings between Management and the complainant prior to and after he lodged his complaint under the Act the Complainant makes not mention of being penalised or stress. With regard to being overworked the Complainant, by his own records, worked and average of 42.47 hours per week over 49 weeks 2014, 46.42 hours per week over 43 weeks in 2015 and 40.9 hours per week over 46 weeks in 2016. He did not put forward any evidence to show that the 48 hour/4 month statutory rule was broken. He was contracted to work 37.5 hours per week but “such additional hours as may be necessary for the proper performance of your duties”. From the evidence submitted by the Complainant it appears in 2014 he took 16 days holiday and 2 TIL days, in 2015 he took 40 days holidays and in 2016 he 16 days holidays during that period. He was contractually entitled to 20 days per year. This evidence does not support the claim made “that I was overworked and my health was undermined for having to work to long and too intensely”. If the penalisation complaint is centred around the retraction of the changes made in September 2011 then the Complainant had six months from that date to lodge a complain under the Act, other wise he is time barred from introducing that as penalisation.
Decision: (Ref No CA-00012963-001)
Section 28 of the Safety, Health & Welfare at Work Act, 2005requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Section 28.3.
The Law Penalisation is defined by s. 27 of the Act as follows: -
(b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: - (3) An employer shall not penalise or threaten penalisation against an employee for—
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
Having considered all the evidence the Adjudicator finds that the Complainant’s case that he made a “protected act” very weak, if at all, and if indeed it was made 2.c seems the only option open for consideration. The resulting penalisation claimed by the Complainant was not proven to any relevant degree and definitely no direct link was established by the Complainant. The changes to his terms occurred back in 2011 and as no penalisation, in any form was proven by the Complainant as a direct consequence of the alleged “protected act. Therefore the grounds for penalisation that the Complainant relied upon in his first penalisation complaint (WRC Ref no 2278) are identical in this complaint to that complaint, but the penalisation complained of in this instance is the penalisation by the Respondent of a contrived redundancy. That decision concluded that the events leading up to the first complaint were not penalisation. Therefore on the basis that the first part of the Complainants claim for penalisation was not successful and the grounds for that decision care contained in WRC ref no CA-00012963-002 (contained herein) which found the termination to be a redundancy and not an unfair dismissal it falls that both elements of the above claim have not succeeded to justify either penalisation or that the redundancy was not genuine then it follows that the above claim must also fail. Section 24(5) of the Health, Safety and Welfare at Work Act 2005 also prevents recovery in respect of a claim under that act where the dismissal is allegedly penalisation under the 2005 Act and also the dismissal is allegedly unfair within the meaning of under the Unfair Dismissals Acts. “(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.” Therefore the “duplicate” claim for unfair dismissal arising out of alleged penalisation is prohibited by the Health, Safety and Welfare at Work Act 2005
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For the above reasons, the complaint fails. |
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Decision ( Ref No CA=00012963-002)
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. CA-00012963-002.
Section 6.1. of the Act states “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
The Complainant alleged he was unfairly dismissed and a contrived redundancy was manufactured in his case. The detail of the background to the termination of the Complainants employment are contained above.
He stated he was singled out for redundancy due to the historical situation in the company and because he had raised a complaint against the Respondent with the WRC. He stated the redundancy was penalization, was due to an unfair process, had been predetermined, the consultation was inadequate, no clear policy on selection, he was unfairly selected, no economic case was established, alternatives were not offered to the Complainant and the procedures were unfair.
The rule in Henderson v Henderson is somewhat ambiguous in this situation as there are two different claims with two different remedies and as the four prior claims were withdrawn the detail supporting those claims should not be prohibited from being used to support the Complainants case.
From the evidence presented the Respondent has shown a significant financial and business case for reducing its workforce by almost two thirds, as their was less than 30 staff involved the x y z procedures did not apply, the Complainant was given opportunities for other roles to consider but choose not to apply or pursue them, the economic case due to the operating financials were compelling and the Respondent engaged in a comprehensive engagement process with staff which the Complainant seems to either have opted out of or took little part in. The Complainants argument that the consultation process was not long enough (30 days was required)does not stand the test as he was notified almost four months before his expected redundancy date. The fact that he opted to take pay in lieu of notice should not be used as a negative against the Respondent in this case.
I have determined from all the evidence provided that the Complainants employment was terminated as a result of a redundancy situation and substantial grounds existed for the termination of his employment and therefore the claim for unfair dismissal fails accordingly.
Dated: 20/11/17
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal and Penalisation |