Complainant

Respondent

Anonymised Parties

A Sales Representative

A Drinks Wholesaler

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-00012432-001

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00012432-002

12/07/2017

The complainant was employed as a Sales Representative in and around May 2014 until 28th April 2017. In November 2016 the respondent became the complainant’s employer by means of a transfer of undertakings. The complaints relate to an alleged breach of Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) and the alleged Unfair Dismissal of the complainant. Further information was sought at the adjudication hearing and was submitted on 25th May 2018.

The complainant contends that he was unfairly dismissed by the respondent. The complainant stated that he was told he was being made redundant at a meeting he had sought in relation to a separate business he was involved in with a director of the respondent. The complainant stated that he had also become aware that he was employed by a new entity and sought the meeting to obtain clarity in that regard. The complaint contends that another Sales Representative who had less service with the respondent remained in the employment after he was made redundant. The complainant contends that it was not a valid redundancy situation and that no alternatives were considered by the respondent and there was no opportunity to appeal the decision. The complainant is seeking compensation in relation to the unfair dismissal.

The respondent stated that the complainant was employed as a Sales Representative in coffee supplies which was a new area of its overall business. The respondent stated that the complainant was made redundant in circumstances where this element of the business was unsuccessful and the complainant was aware and had been involved in discussions relating to the continued viability of the coffee supplies sales business for some time. The respondent stated that the other employee was employed on a part time basis as Coffee Support/Maintenance and Repairs whose role was to visit client sites and maintain and service coffee machines. The respondent stated that this employment ended in September 2017 and neither employee has been replaced. The respondent stated that coffee sales are no longer promoted by the company.

The complaint relates to an alleged unfair dismissal. The respondent stated that the complainant was made redundant in legitimate circumstances whereas the complainant maintains that the termination of his employment was not a valid redundancy as another Sales Representative with less service remained in the employment after the complainant was made redundant.

The respondent submitted a contract of employment for the complainant who was employed as a Sales Representative and for the other employee who was employed as Coffee Support Maintenance and Repairs. In undated correspondence received by the WRC on 2nd August 2017 the respondent stated:

“[Name of Employer] mainly generated their business from sale of drinks to the Pub Sector. In 2014 [Name of complainant] was hired as a Coffee sales rep in an attempt to grow Coffee/tea sales. A second part time sales rep also joined the team afterwards.

It became apparent in 2016 that coffee sales where [sic] not growing. It was necessary to make a position in the Coffee department redundant. Notice was given, procedure was followed and [name of complainant] was made redundant.

Redundancy calculation was based on start date with [pre- transfer employer] and same Salary throughout his length of employment.

[Name of employer] continues to employ the part time Sales rep.”

The part time employee whose contract of employment stated that he was employed as Coffee Support Maintenance and Repairs was also required by his contract to “work in a different role as the needs of the business demand.” On that basis and on the basis of the contents of its correspondence above, I find that the other employee was also considered to be a Sales Representative by the respondent. In those circumstances and on the basis that the other employee had less service than the complainant and in the absence of a transparent redundancy selection criteria, I am satisfied that the selection of the complainant for redundancy was unfair.

Mitigation of Loss

The complainant submitted documentation to the WRC in relation to his loss of earnings and has quantified the losses at €22,998 from the cessation of his employment in April 2017 to the end of May 2018.

In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate his loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In the instant case, the complainant did not provide sufficient evidence that he met the standard in attempting to mitigate his loss. In those circumstances, I do not consider it appropriate to award the level of compensation sought.

In all of the circumstances of this complaint, I find that the complainant should receive compensation in the amount of €10,000 less €4,896.00 which he received as a statutory redundancy lump sum payment.

Having considered the submissions of both parties, I declare that the complaint is well founded. The complainant was unfairly dismissed by reason of unfair selection for redundancy. The respondent is directed to pay the complainant compensation in the amount of €5,104.00 within 42 days of the date of this decision.

The complainant stated that he was unaware that a transfer of undertakings had taken place in November 2016 in respect of his employment. The complainant contends that there was no prior consultation or information provided to him as is required by the regulations. The complainant also stated that he did not receive any correspondence from the respondent around the time of the transfer. The complainant is seeking compensation in relation to his complaint.

The respondent refutes the complaint. The respondent stated that the complaint was submitted to the Workplace Relations Commission (WRC) outside of the statutory timeframe and is therefore statute barred. Notwithstanding its position in relation to the timing of the complaint, the respondent contends that it followed all procedures in relation to the transfer. The respondent also stated that the complainant was provided with a letter confirming the details of the transfer at the time and that all payslips after the transfer date referred to the respondent as the employer.

Time Limits

Section 41(6) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), 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.”

In the instant case, the transfer of undertakings took place on the 7th November 2016. The complaint was submitted to the WRC on 12th July 2017 which is outside the statutory six-month time for the referral of complaints. Accordingly, the complaint is out of time.

Having considered the submissions of both parties, and given the statutory time limits for referring complaints to the WRC, I declare that the complaint is out of time and is therefore statute barred.

Transfer of undertaking, unfair dismissal