Complainant

Respondent

Anonymised Parties

A Caretaker

A Housing Association

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-00012298-001

05/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012298-002

05/07/2017

The Complainant contends that he was unfairly dismissed by way of redundancy. He further contends that the Respondent failed to consider and process grievances he had with his Employer.

The Complainant was a Caretaker at one of the Respondent’s premises. He worked 9 hours per week and was paid minimum wage. He was available on an on call basis, provided access to the public areas and was familiar with the heating and fire alarm systems. He always carried out his duties in a professional manner and enjoyed his role.   A number of years ago he began to feel a particular type of attitude was being demonstrated towards him in the workplace and he felt isolated and vulnerable. He had an Equality claim which was heard in June 2015. The claim was unsuccessful and the outcome was not appealed.   He was not invited to the staff Christmas party and was only advised of his Christmas leave entitlements in January 2016. In July 2016 the Complainant was invited to a meeting with the Regional Manager. This meeting was to discuss his role. In October 2016, he was advised that his role was being considered for redundancy.   He was advised on 3rd November 2016 that his role was being made redundant and that he could propose alternative suitable roles. This he did, however the proposals were rejected as not being viable. He received correspondence in January 2017 advising that his post was being made redundant, but no right to appeal was contained therein. The Complainant was devastated as he had been assured that changes in tenancy would not affect his job. It is the Union’s position, on behalf of the Complainant that legitimate grounds for the redundancy did not exist and that it was a person specific judgement.

In relation to the Complainant’s issue under the Industrial Relations Act, he felt that more and more of his work was being taken away from him and he had a number of issues and complaints regarding cleaning products and lack of access to the building on a particular weekend. He also felt isolated and excluded by not being invited to certain functions. He raised some of these issues with the HR Manager at the time who promised to get back to him, but never did. She since left the company and then after that, he was made redundant which it is contended was an unfair selection and unfair dismissal.

The Respondent refutes the claim that the Complainant was unfairly dismissed. The outline of the facts relating to his redundancy was given, summarised as follows:

Consultation meetings were held with the Complainant in October 2016. A formal letter of redundancy was issued on 3rd November 2016 stating the reasons for the redundancy. 1st floor taken over by a charitable organisation, 3 staff using the building on a part time basis, work greatly reduced and only a small amount of cleaning to be done on the ground floor. The Complainant was advised that he would receive statutory payment and a top up of 2 weeks. The Respondent received proposals from the Complainant to avoid his redundancy but these were not viable. The Respondent also considered an appeal but the redundancy was upheld.

In relation to the Industrial Relations referral, the Respondent raises a preliminary point.   Section 13 (3) of the Industrial Relations Act 1969 provides that a rights commissioner shall not hear a dispute if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.   The Respondent wrote to the WRC on 17 August 2017 confirming an objection to the dispute being heard.   This was acknowledged by the WRC in writing setting out the alternatives. It is submitted therefore that it is not appropriate for the case to be heard.

Without prejudice to the above preliminary matter, the Respondent argues that it has always provided a safe environment for its employees and does not tolerate any behaviour which allows an employee to be left isolated. The issue raised relates to a previous case which was fully investigated by an Equality Officer and the Complainant was found not to have been victimised. There is no record on file of any complaint made by the Complainant and the particular HR Manager left the company in August 2016. The Complainant did not raise a grievance in in the manner set out in the employment contract and company procedure.

CA-00012298-001       Unfair Dismissals Act 1977

Section 4 (c) of the Act provides:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(c) the redundancy of the employee.

Section 7 (2) of the Redundancy Payments Act 1967 provides for the definition of redundancy as follows:

“(2) -For the purposes of subsection (1), an employee who is dismissed shall be taken to he dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

( a ) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

( b ) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

I note from the evidence of the Respondent that the requirements of the role of the Complainant had greatly diminished when the charitable organisation took over a substantial part of the premises.   I find that the Complainant was made redundant and that his complaint of unfair dismissal is not upheld.

Recommendation:

CA_00012298-002     Industrial Relations Act 1969

In relation to the Respondent’s preliminary point I find as follows:

Section 36 (1) of the Industrial Relations Act 1990 provides that any party can object to a dispute being investigated by a Rights Commissioner and if so, the case can be referred to the Labour Court under Section 20 (1). However, any objection shall have no affect unless notified in writing within 3 weeks after the notice of the dispute has been sent.   As the respondent notified their objection after the 3 week period, I deem the objection to have had no affect and have jurisdiction to hear this dispute.

In relation to the substantive issue, I note that the Complainant did try and raise some of the issues with the HR Manager who since left the company. I note the Respondent’s point that there was no record and that he should have raised the issues in accordance with procedures.   I also note that the Respondent has offered the Complainant a redundancy payment of statutory plus two weeks top up. In order to draw a line under this dispute in recognition that his latter complaints were not dealt with, I recommend that the Respondent pay the Complainant an extra €500 with his redundancy.