ADJ-00015126

Complainant

Respondent

Anonymised Parties

A Manager

An Engineering Company

Representatives

Forsa Trade Union

Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00019671-001

09/06/2018

The complainant commenced employment with the respondent in 1987 and was a manager earning €5610.00 per month.

Dismissal is denied by the respondent.

A transfer of undertakings was communicated to the complainant and his co-workers on January 30th, 2017.

In addition to the change in the company ownership this also required a move to a new base some sixty kilometres away. The complainant made a number of attempts to start discussion with the company and he was invited to consultation on February 17th.

The transfer of ownership (but not the change of location) took place on March 7th2017.

There was nothing further until November 21st when the complainant was told to report to the new base. Shortly afterwards, on December 15th his representative wrote to the company inquiring about the possibility of a severance package. The company replied to the complainant offering a meeting but stating it would not permit the attendance of his representative (a union official, but acting in a personal capacity).

The complainant responded seeking an enhanced package in excess of the statutory redundancy terms but the respondent would not agree to this.

The complainant resigned on January 3rd, 2018.

The complainant was facing an additional round trip of 124 km per day and the proposed re-location was very inconvenient.

No offer of compensation was ever made in respect of this additional travelling.

It seemed that in general the respondent wished to procure his resignation because of the savings it would create on account of the complainant’s relatively high earnings.

It is regrettable that the company also refused to accord to the complainant the right to be represented by a person of his choosing; in this case an experienced trade union official and a friend of the complainant, who undoubtedly could have assisted the parties to achieve an amicable resolution of the issues.

The respondent says that no dismissal took place and that the employment relationship was ended by mutual agreement. Therefore, no case arises under the Act.

Further to the narrative set out above the respondent says that at the meeting on December 1st 2017 the complainant advised that he was considering applying for voluntary redundancy and that he was ‘looking at all his options’.

While the letter from the complainant’s representative on December 15th states that the respondent had sought an expression of interest in a voluntary redundancy package this was not the case, and that it had responded to the complainant’s having raised it.

A further meeting followed on December 20th and it is accepted that the complainant’s representative was denied access to the meeting. But the respondent’s position was that at that time the complainant’s position was not redundant. It sought written clarification of the position on December 22nd to which the complainant replied the following day stating;

‘I would ask that you proceed with payment of my statutory redundancy’.

There was further correspondence on January 3rd to which the complainant replied, again confirming that he did not ‘see any other option other than the immediate processing and execution of my redundancy.

The respondent did this and the complainant was paid statutory redundancy and other outstanding monies on January 23rd.

Accordingly, no dismissal took place and the complainant quit his employment of his own accord.

In respect of any compensation package for the additional travelling the respondent did not get the chance to discuss this with the complainant and neither was it the subject of any grievance. He had known that a move was going to happen for nearly a year and at no stage brought this aspect of thye matter up.

While a complaint like this must be decided on the basis of the applicable law, (and will be) it is hard not to be aware of the human factors involved.

The complainant, a professional engineer and manager with over thirty years’ service was faced with the prospect of what he regarded as a very disruptive move.

There appeared to be a collective unwillingness and failure to take account of this and to process the complainant’s issues with sensitivity and generosity.

While it is true that the complainant did not lodge a formal grievance, this illustrates a ‘letter of the law’ rigidity on the part of the respondent which does not reflect well on its approach to an issue which involved such a senior, long serving employee, as does its refusal to admit the complainant’s chosen representative to the process. No great principle would have been shattered by doing so and it might have contributed to a more amicable resolution.

While the complainant raised the issue of redundancy it is clear from the language used that it was done with reluctance.

Nonetheless, regardless of the degree of reluctance the complainant’s email of January 3rd to the HR Manager was an unequivocal request ‘for the processing and execution of my redundancy’.

He received official confirmation that this would proceed two days later from the company CFO, and he signed to the effect that he had read and understood the terms being offered, and the basis and date of the payment. This is dated January 12th, 2017.

In the circumstances I find that he was not dismissed and that no complaint under the Unfair Dismissal Act 1977 arises.

For the reasons set out above I do not uphold complaint CA-00019671-001 and it is dismissed.

Unfair Dismissal