Complainant

Respondent

Anonymised Parties

A Foreman

A Construction Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014819-001

06/10/2017

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

CA-00014819-002

06/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014819-003

06/10/2017

The complainant was employed by the respondent from the 4th of June 2015 until 21st April 2017 when his employment was terminated. He was paid €840.00 gross and €678.10 nett per week. He submits that he was unfairly dismissed without adequate notice and that he did not receive a statement in writing in respect of the terms and conditions of employment. He is claiming that he was in continuous employment with the same employer since 1st November 2005 and was entitled to 6 weeks notice.

The complainant is claiming that he is employed by the same employer since 1st November 2005. He said that his boss (Mr. A) was a Director and operated all the 3 companies he has worked since 2005. He said that he was employed as a general operative by Mr. A in his construction company in 2005 and 2 years later he was promoted to the position of foreman.   The company suffered financial problems due to the recession and went bankrupt and the complainant said that he was transferred to an exhibition and event management company also owned by Mr. A. He worked there for 6 years as a foreman. In 2016 Mr. A decided to start a new building company and the complainant said that he was transferred over to this company to work as a foreman.

The complainant said that he always got on well with his work colleagues and his boss Mr. A. always spoke highly of him. A new accountant started in the company in September 2016 and everything changed dramatically. There were problems with the payment of overtime. Then he received a letter outlining the cost of his employment to the company and he was told to familiarise himself with the document so that he knew how much it cost the company to employ him. In December 2016, the company van was taken off him and he had little contact with Mr. A and weekly meetings with him were no longer happening. He said that he felt completely isolated and it felt as if Mr. A wanted him to quit. After Christmas 2016 he sought the payment of overtime which was outstanding from 2016.

On the 17th of March he was leaving on a family holiday which had been planned for months and the day before departure Mr A told him that going on holidays was very disruptive. On his return from holidays the claimant said that he was called to the office by Mr. A and he was told that it was time for him to leave the company. He said that Mr. A blamed him for everything and accused him of being irresponsible and not delivering on time.   He was informed that his employment would finish after the June public holiday. He then received a letter of dismissal dated the 12th of April 2017, informing him that he was on notice and his employment would terminate on the 21st April 2017.

The complainant said that he continued to do work for the events management company while working for the respondent at Mr. A’s request and this contributed to delays on the building site. He said that he had to build temporary structures for 2 to 3 big events every year.

The complainant said that he believes that he was dismissed because of his performance and not because the job was redundant. He said that the building site remained open and he believes a new employee was taken on.

It was submitted that the complainant was employed by the respondent XX Ltd on the 8th of June 2015. He was issued with a contract of employment. His employment was terminated due to redundancy on the 21st April 2017 and he was given notice in excess of the statutory amount of 1 week. The complainant had less than 2 years of continuous service with the employer and did not qualify for a redundancy payment.

The respondent denies that the complainant had continuous employment with the respondent since 2005 as alleged by him. The complainant was initially employed by a Construction Company in November 2005.   That company became insolvent and ceased trading on 26th April 2013 and the complainant’s employment was terminated and he was issued with a P45. The complainant was then employed by an Exhibition and Events company on 29th of April 2013 and he was the only employee of the Construction Company to be offered employment. Mr. A was a Director in both limited companies and he decided to set up a new construction company in 2015 when the economic outlook began to improve. Mr. A informed the complainant about the new company and on the 4th of June 2015 he was hired by this company XX Ltd and issued with terms and conditions of employment in writing.   He was issued with a P45 by the Exhibition and Events Company on the 5th of June 2015.

It was submitted that the 3 companies are three different private companies limited by shares. The complainant’s employment terminated on 2 occasions and he took up employment with the next company. The respondent submits that there was no Transfer of Undertakings to support the complainant’s argument of continuous employment for the purposes of his claims before the WRC. The Transfer of Undertakings can only apply where a business is transferred or sold or where a business division is transferred from within subsidiary within a group to another, or where part of a business is transferred into a new joint venture.

There was no legal transfer of the business in this case. The complainant’s employment ended with the first company and he was offered employment with the second company and this employment terminated when he took up employment with XX Ltd. It is accepted that Mr. A is a Director of all three companies.

Mr. A was employed with XX Ltd as a foreman on the 8th of June 2018 and he was issued with the terms and conditions of employment. It is accepted that the respondent did not have any written disciplinary or grievance procedures in place. During the course of his employment with the respondent he was provided with specialist construction industry training.

In early 2017 the construction project was running substantially over budget and was behind schedule. A newly appointed financial controller conducted a review of the business and advised that immediate cost savings had to be made. The requirement for a foreman diminished and the respondent decided to carry on the business with fewer staff.

The complainant was selected for redundancy as he was the most highly paid member of staff and the termination of his employment would deliver the greatest saving to the company. He was advised verbally of the situation in March 2017 and he was notified of the redundancy by letter dated 12th April 2017. The complainant did not qualify for statutory redundancy as he had less than 2 years service and he was offered an ex gratia payment which he refused to accept.

Mr. A said that the site on which the complainant worked was the only construction site that he was operating at the time. The complainant was the foreman and the costliest employee. He had to implement immediate cost savings. The project was behind schedule and he was trying to impress on all the employees that the company had financial trouble.

Mr A accepted that he was annoyed with the complainant for giving very short notice of his holidays commencing on the 17th of March. He said that the complainant gave less than a week’s notice of the holidays and there was nobody in place to to take on his role in his absence. He arranged a meeting with the complainant on his return from holidays on the 27th of March. He said the purpose of the meeting was to tell the complainant that the building project was behind schedule, that it was not a sustainable situation for the company and some action would have to be taken. At the meeting he told the complainant that the project was a year behind schedule and as foreman he would have to take some responsibility for the delays. He said that he was not blaming him but he was putting him on notice that it was a serious situation.

Preliminary Matter

The first matter I must decide is whether the name of the respondent named on the complaint form can be changed to the correct legal name of the complainant’s employer. The respondent submitted that the complainant was employed by XX Ltd and not XX and the correct name of the employer was clearly identified on the complainants pay slip. The respondent did not consent to inserting Limited after the name on the complaint form. The complainant made an application to have the name changed to the correct legal entity.

Section 39 of the Organisation of Working Time Act of 1997 provides, inter alia, as follows:

“(1) In this section ‘relevant authority’ means an Adjudication Officer ….

(2)  A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection [the said Table includes the Unfair Dismissals Acts] that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3)  The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4)  If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and–

(a)  the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent's name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b)  the said statement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceeding in the first instance for leave to institute proceedings against the said person (‘the proposed respondent’) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant leave to the employee notwithstanding that the time specified under the enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

I note from the complaint form that the employer was named by the complainant as XX and Limited was omitted but in answer to a question on the complaint form “Is this a Limited Company?” he said yes.

In considering whether the name can be amended to include Limited, I have applied the jurisprudence in the High Court case of Capital Food Emporium (Holdings) Limited High Court unreported [2016] IEHC 725. This was an unfair dismissal claim referred by a former employee of Capital Food Emporium to the Rights Commissioner. The representative for the employer acknowledged receipt of the complaint under the Unfair Dismissals Act 1977 as amended, but failed to attend the Rights Commissioner hearing. A recommendation was issued and the employer appealed it to the EAT and then withdrew the appeal before the hearing. The former employee applied to the EAT seeking implementation of the Rights Commissioner’s recommendation and at that stage the representative of Capital Food Emporium Ltd notified that the recommendation was made against the wrong employer. After an application under Section 39 of the Organisation of Working Time Act 1977 the Rights Commissioner issued a correction order amending the name to the correct employer’s name. The former employee then applied to the EAT for implementation of the recommendation which was granted. Capital Food Emporium Ltd., then applied for a judicial review on a number of grounds including that the Rights Commissioner and the EAT acted ultra vires.

Mr. Justice Barrett in his judgment stated that the maxim quod approbo non reprobo applied (‘That which I approve, I cannot disapprove’), because after acknowledging and accepting that Capital Food Emporium Limited was properly the party concerned with the employment dispute they could not withdraw from this position.  Mr Justice Barrett said:

“…the making of the correction order must be viewed in the context of Capital Food Emporium Limited having

(a) submitted to the jurisdiction of the Rights Commissioner,

(b) sought in its letter of 10th September, 2012, the “understanding” of the Rights Commissioner for the purpose of seeking a re-hearing of the complaint, and

(c) confirmed and acknowledged, when lodging its appeal, on 21st September, 2012, that it was the relevant party concerned with the employment dispute.”

In the circumstances and in applying the jurisprudence in the Capital Food Emporium Limited, I can see no reason why the name of the employer cannot be amended to the correct legal name particularly given that the respondent named acknowledged receipt of the complaint, attended at the hearing with his solicitor and gave evidence in relation to the circumstances of the dismissal.   There was no evidence submitted at the hearing that the legal employer XX Ltd was not given an opportunity to be heard or suffered any prejudice.  

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the complainant to proceed with his claim in all the circumstances. Therefore, I am exercising my power under Section 39 of the Organisation of Working Time Act 1997 to amend the name of the employer to the correct legal entity.

Substantive Issue

The complainant said that he was notified of his dismissal at the meeting of the 27th March 2017, and the respondent blamed him for delays and other issues on the site. The respondent said that he was not notified of his dismissal at that meeting but the issues about the delays and the over run on the budget were raised and he was warned that his job was in jeopardy. I am satisfied that the meeting with the complainant was a meeting to warm him about his performance. The respondent said that the project was over budget and running a year behind schedule. I note that Mr A said in evidence that the complainant had to take some responsibility for these problems. I note that the dismissal letter issued 2 weeks after this meeting.   Even though he was being asked to take responsibility for the problems on the site, I consider being given two weeks to improve his performance was completely inadequate particularly given that he had never been warned about his performance prior to this meeting. Likewise, I note that the respondent accepted that he was annoyed with the complainant for giving short notice of his holidays.

The dismissal letter stated that the company was in the process of winding down and ceasing operations on the site but I note that this did not happen until April this year a full year after the dismissal.

There was no evidence produced in relation to the financial situation pertaining in the company at the time, however, I accept the evidence that there were financial difficulties caused by the delays and over budget spending. However, I am of the view that complainant’s performance was the substantial reason for the dismissal at that time.

I find that the complainant was unfairly dismissed. In assessing financial loss, I note that the complainant was out of work until March 2018 except for three short periods. He submitted that he was setting up his own company and he got some contracts. Given the upturn in the building industry, I am not satisfied that the complainant made sufficient efforts to mitigate his loss and for this reason I am awarding him financial loss for a period of 13 weeks only. The complainant nett pay was €678.10 and he earned €2,100 during the 13 week period and in deducting this amount his financial loss amounts to €6,715 nett.

I find that the respondent has failed to establish substantial grounds justifying the dismissal. I award the complainant compensation for his financial loss in the amount of €6,715 nett.

The complainant submits that he is entitled to 6 weeks pay in lieu of notice as he had continuous service with the respondent from 11th April 2005.

The respondent submitted that the complainant was given his statutory notice entitlement. He was in fact given 9 days’ notice. The complainant was not in continuous employment with the same employer for more than two years so his statutory entitlement is one weeks’ notice.

I am satisfied that the complainant did not have continuous service with the same employer since 2005. I note that he is claiming continuity of employment on the basis that Mr. A was the person who employed him in the three employments. While Mr. A is a Director of the 3 companies, these companies are separate legal entities and there was no transfer of his employment rights under the Transfer of Undertakings legislation following the cessation of his employment in the first and second company. His employment was terminated with the first company and he took up employment with the second company. His employment was terminated with this company when he accepted an offer of employment with the respondent company in June 2015.

I am satisfied therefore that the complainant was paid his full statutory notice entitlement on the termination of his employment with the respondent and there are no outstanding payments due to him. Therefore, his claim fails.

I find that there is no merit in the claim and his complaint under the Act fails.

This is a complaint concerning the complainant’s terms and conditions of employment.

The complainant stated that he was not given a statement with his terms of employment when he commenced his employment.

The respondent submitted in evidence a letter dated the 4th June 2015 setting out terms and conditions of employment which was provided to the complainant before he started in the employment.

I am satisfied that the complainant was provided with a statement containing terms of employment signed by the employer on the 4th June 2015. Any complaint that this statement contravenes the Act must be presented within 6 months of the date of the statement which is the 3rd of December 2015. However, the complaint was not presented to the WRC until 6th October 2017.   Section 41(6) and (8) sets out that complaints must be referred within a 6-month period or for reasonable cause within 12 months: “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. I, therefore, declare that I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015.    

The complaint was referred outside the statutory time limit and I have no jurisdiction in the matter.

Unfair Dismissals Act 1977, redundancy and dismissal, Payment of Wages Act, entitlement to notice, continuous employment with same employer, Terms of Employment (Information) Act, statutory time limits, correct legal name of the company, application to change name.