Complainant

Respondent

Anonymised Parties

A Horticulture Worker

A Horticultural Business

Representatives

Meleisa Ferris

Cormac MacNamara, B.L. instructed by Clark Hill Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00003880-001

15/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00003880-002

15/04/2016

The respondent operated an estate and nursery which closed in March 2015.

The complainant, who was employed as a general operative since October 1990 on a monthly salary of €2200.00 was made redundant in March 2015 but continued in employment until October 2015 on the basis of a number of renewable contracts.

The respondent gave evidence through its auditor of the background financial difficulties detailing trading losses in each of the years 2012, (€455,000) 2013 (which while a trading loss of €400,000 the respondent actually showed a profit for other reasons). 2014 (€233,734), 2015 (€174,000) and 2016 (€296,952).

The respondent began a process of consultation with its employees on December 3^rd 2014 and issued a letter advising of the collective redundancy the following day.

It provided the financial information required on December 10^th 2014.

Notice of termination was issued on January 15^th 2015 to the employees and around the same time information about the imminent closure of the enterprise was sent to the respondent’s clients and customers.

On March 13^th 2015 a severance and redundancy package was agreed with the respondent and statutory redundancy in the amount of €28,000 approximately was paid to him.

The respondent did advise the complainant that there would be continuing work to assist with the wind down of its operations.

This happened and the complainant was retained, following an initial break from March 13^th to March 25^th, on the basis of a succession of fixed term contracts, renewed weekly and these were exhibited in evidence. These were bona fide contracts as the precise need for continuing work was uncertain.

He was also offered part time work which he declined.

The respondent rejects a claim by the complainant that he was told he could ignore the redundancy and that his employment would continue as before and that his job was ‘safe’.

The Manager of the respondent who was alleged to have made this comment gave direct evidence to the contrary. It is also significant that the complainant did not make any complaint at the time of the redundancy.

A genuine redundancy situation existed as demonstrated by the financial losses referred to above and the consultation and selection processes were fair and compliant. One employee named by the complainant who was not made redundant had a relevant horticulture degree.

Finally, the respondent submits that the complainants were made outside the time limits and the only complaint that is within jurisdiction is the alleged dismissal on October 31^st, 2014.

The complainant says that a genuine redundancy situation did not exist and that the further information sought by the complainant was not provided.

Two of his former co-workers were not made redundant and he had not been considered for another role. While the workers had been supplied with certain financial information the complainant says he did not believe or accept the financial information as being true.

It was also submitted that the closure was a ruse to prepare the business for acquisition by a local authority.

The complainant insists that he was told by his Manager that nothing would change and that his job was safe, despite receiving the redundancy payment and entering into the series of fixed term contracts.

The complainant says that there was continuity of employment up to October 31^st and that the complaint is within time. The reason the complaint was not submitted earlier was because the complainant was still in employment until October.

There are two complaints in this case; one under the Unfair Dismissal Act and a second which relates to the consultation and related issues arising in a collective redundancy as required by the European Communities (Protection of Employment) Regulations 2000.

The complaint under the Unfair Dismissals Act could be said to relate to the initial termination in March 2015, on the basis that there was no valid redundancy, or the actual final termination which took place in the following October.

If it is the former the complaint was submitted to the WRC on April 15^th 2016 and therefore an issue relating to time limits arises. The redundancy took place on March 13^th 2015 and this therefore falls outside the six month’s time limit required by the Unfair Dismissals Act (and even outside the longer twelve month’s limit required by the Redundancy Payments Act).

The complainant says he did not submit the complaint earlier because he was still in employment until October 30^th 2015.

If it is the latter the respondent says that the complainant did not have the requisite twelve month’s service to ground a complaint.

The starting point therefore is the nature of the termination in March 2015.

The complainant signed a ‘Severance Agreement’ on March 13^th 2015 in which he accepted a statutory redundancy payment of €28,424.44. A copy of the agreement bearing his signature was exhibited in evidence.

He claimed, or implied at the hearing that he did not understand what he was doing, or the consequences of his actions.

Evidence was also submitted of contracts signed by him from March 25^th to July 13^th, July 22^nd to August 12^th and September 15^th to October 30^th. (In fact the contract dated March 25^th is not signed by him but all the others are signed and dated by him; some twenty-one in total, by my reckoning).

He makes a number of claims.

One is that he believed his ‘job was safe’ and that he was told this by the manager overseeing the process and also that things would continue as they had been.

These claims are simply not credible.

The complainant is submitting that, notwithstanding receipt of a payment of over €28,000 he believed (whether on the basis of the alleged commitment or not) life would continue as previously.

But, he then signed a series of almost weekly contracts headed ‘Temporary Contract’ and which explicitly identified the duration (fixed term for one week, extendable) and nature of the contract, and its purpose.

It also contained the following.

No period of prior employment for the [respondent] shall form part of your continuous employment by reason of the fact that your permanent employment…ended on 13^th March 2015’

In addition, the Manager said in evidence that he did not make such a commitment and it is hard to see how he could have, given that he was overseeing the redundancy process. It seems much more likely that the complainant misunderstood the nature of the commitment to continue his employment to assist with the wind down of the company’s activities.

His service was broken on three occasions; initially fro one week following the redundancy and then again from July 13^th to 22^nd and from August 29^th to September 5^th. This contradicts the complainant’s assertion that there was continuity of employment, to say nothing of the signed contracts.

How the complainant could assert that none of this represented a substantial change in his employment status is simply not credible. He had been employed for over twenty four years by the respondent on the basis of a normal, contract of indefinite duration.

His submission that he did not regard these various developments; the payment to him of over €28,000, the weekly contracts, the breaks in service as something of a departure from the previous norm is not credible..

I am satisfied that the complainant was made redundant on March 13^th 2015, and that his re-engagement was for the purpose of winding down the business only. In any event, he had not accumulated one year’s service by the time this engagement was eventually discontinued so there is no basis for a complaint on either ground.

Regarding the obligations under the Protection Of Employees the respondent submitted evidence of its compliance with the requirements of the Act.

The letter sent on December 10^th 2014 to the workers’ representatives contained the financial information regarding the company’s losses. It is not sufficient, as the complainant’s representative sought to do to say that these were not ‘believed’.

In the course of the hearing credible evidence was given by a Chartered Accountant in respect of the company’s financial position which I has no basis for doubting.

On December 4^th 2014 each employee was written to advising then of the financial losses in the company and putting them on notice as to the possible closure of the business.

The company set out its obligations under the Protection of Employment Acts 1977 -2007 and proceeded to provide answers to a number of standard questions required by Section 9 of the Act. It also sought nominations for employee representatives and set out the process for their election. Two employees were selected in due course to fulfil this function.

On December 10^th these representatives were sent a summary of the Audited and Management Accounts for the company from 2012 to 2014 with the Management accounts for the period January 2014 to November 2014. The Minister for Enterprise, Trade and Employment was also notified and a copy of this provided to the employee representatives.

The representatives submitted a series of queries on December 16th which were addressed as part of the consultation process on January 7^th 2015. Eventually the redundancy notice issued to the complainant on January 15^th 2015.

I find that these actions met the obligations placed on the respondent by sections 9 and 10 of the Act.

I find therefore that the complainant’s contract of employment ended on March 30^th 2015 by reason of redundancy. Any complaint under the Unfair Dismissals Act relating to that incident is not upheld for that reason and in any event it is not within jurisdiction as it was not made within the required time limits.

If it relates to the October termination the complainant did not have the required service under the Act to make a complaint. Either way, a complaint under the Unfair Dismissals Act fails.

I find that the respondent complied with its obligations under the European Communities (Protection of Employment) Regulations 2000, but neither was that complaint made within the time limits specified in the Act.

For the reason set out above I do not uphold complaint CA-00003880-001 under the Unfair Dismissals Act or CA-00003880-002 under the European Communities (Protection of Employment) Regulations 2000 and they are both dismissed.

Redundancy, unfair dismissal, collective redundancy, time limits.