ADJ-00008711

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008711

Parties:

Complaint(s):

Date of Adjudication Hearing: 27/10/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 – 2014, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. 

Background:

The Complainant was employed as a Fuel Manager from 22^nd December 2013. The Respondent acquired the share capital of the then Complainant’s employer in March 2017 and terminated the Complainant’s employment on 30^th June 2017.

The Complainant earned €1,407.69 gross a week at the time of his redundancy. 

The Complainant submitted that he did not receive his correct redundancy payment and in addition submitted that he was unfairly dismissed.

The Complainant is seeking compensation.

Summary of Complainant’s Case:

CA-00011611-001 Complaint under Section 39 of the Redundancy Payments Act, 1967  

The Complainant submitted that he was initially employed with a fuel distributor that had an all-Ireland presence at the time of his appointment, but in March 2017 his employer was changed and where the Northern Irish operations was sold to another owner, and where he remained employed with the Southern Irish operation.

The Complainant submitted that he was informed by the Respondent on 25^th May 2017 that he was to be made redundant and where his contract of employment was to be terminated on 30^th June 2017. He advised that he only received statutory redundancy payments whereas traditionally his employer would have paid statutory payments plus 4 weeks, capped at one year’s salary. The Complainant maintained this redundancy had been paid in August 2015 to other employees and where he would have been involved in briefing staff and enacting the redundancies at that time. He further advised that subsequently two other members of staff were also made redundant in March 2017 and they would have received more generous redundancy payments than the statutory minimum. On that basis, the Complainant maintained that upon being made redundant he was entitled to the statutory payment plus 4 weeks salary per year served capped at one years salary, which had previously applied in the organisation.

The Complainant also submitted that he did not receive the correct final salary in that he was entitled to be paid up until 30^th June 2017 but he only received 15 days (€3,462) which left him short by €2,638.

CA-00011674-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that after the Respondent acquired a share ownership in the business that significant changes took place in his role and responsibilities which he maintained eroded his job and created a situation which in effect was a sham redundancy. In support of this complaint the Complainant maintained:

1. that his role was changed to a desk-based position where he was no longer required to go to depots which had been part of his original responsibilities;
2. that he was excluded from consultation regarding changes in the operation of the customer relations call centre and in particular he was excluded from the selection and appointment of Depot staff, a responsibility he originally held;
3. that he was excluded from being consulted with details regarding the daily workings of the business following its transfer;
4. that there were changes with regard to the management of the distribution trucks and where another person was allocated these responsibilities which was a responsibility he traditionally had;
5. that recommendations he had made regarding disciplinary sanctions regarding an employee were disregarded;
6. that he was not consulted with regard to his redundancy;
7. shortly after being advised of his redundancy his telephone was taken from him and his son received a sales call from a newly appointed sales manager and where this appointment occurred before his redundancy notice had been served. The Complainant maintained the sales activities conducted by the new sales man included sales duties he had performed (e.g. dropping notices in housing estates, and hosting sales campaigns in shopping centres);
8. that his company car was changed and this impacted on his benefit in kind; and
9. during his redundancy notice period his telephone was taken from as was his laptop, and he was strictly supervised by the Respondent when he was allowed to recover personal information from his work laptop which he argued was disproportionate and unreasonable

The Complainant submitted that his role was made redundant within a matter of weeks of the change of share ownership of the business and came as a complete shock to him. He maintained that there had been no prior discussion with him and no forward notice that this was being considered. He also maintained that the manner in which he requested to leave the premises on the same day, and the manner that he was treated during his notice period was unreasonable and amounted to an unfair dismissal rather than a redundancy.

In summary, the Complainant maintained that he was unfairly dismissed in that unreasonable changes without consultation were made to his role, where in effect a sales job similar to his was decided upon after he was notified of his redundancy and before his redundancy notice period had ended; that he was not provided with any option to consider the new sales role, and in general due to the way he was treated since the change of share ownership.

Summary of Respondent’s Case:

CA-00011611-001 Complaint under Section 39 of the Redundancy Payments Act, 1967  

The Respondent advised that as part of its share acquisition of the business, the Northern Irish operation had been sold separately. It advised that it had not acquired the Northern Irish operation and was not aware of any matters related to redundancy arrangements for the Northern Irish staff since it took over the operation in the Republic of Ireland. It therefore maintained that its rationalisation process was separate to the Northern Irish operation, and what may have occurred with the Northern Irish business was not relevant to its operations, and as such no precedent applied to any redundancy practices that may have occurred in Northern Ireland.

The Respondent maintained that on 23^rd May 2017 as part of its rationalisation process it decided that the Complainant’s role was to be made redundant. The Respondent advised the Complainant of its decision at that time and informed him that he was entitled to statutory redundancy payment which it said was paid with effect from 30^th June 2017. The Respondent also maintained that it paid the Respondent his correct wages at the termination of his employment.

In relation to the redundancy payments that had been made in 2015, the Respondent maintained that as it had no ownership of the business in 2015 it was not aware of the circumstances of the redundancy payments at that time, and referred to that process as being a once off voluntary redundancy for a number of staff. It maintained that having acquired its shareholding in the business in March 2017 the decision to terminate he Complainant’s employment was not related to the previous redundancies of which it had no involvement in, and therefore denied there was any precedent it had to adhere to. The Respondent also advised that there were no contractual arrangements in relation to the Complainant’s contract of employment with regard redundancy payments.

The Respondent acknowledged that as part of its rationalisation process two other roles were made redundant. It acknowledged it paid one of these employees a more generous redundancy payment (statutory plus three weeks) as that member of staff had more than 10 years-service. The Respondent maintained that was the policy it operated where staff over 10 years-service would receive a more generous redundancy payment to staff of less than 10 years-service. It submitted that as the Complainant had less than 10 years-service he did not qualify under this practice. The Respondent maintained that it had also paid another member of staff who was also made redundant at the same time, but with less than 10 years’ service only the statutory redundancy payment. On that basis, it argued the Complainant was fairly treated and that it met is statutory requirements under the Redundancy Payments Acts.

In summary, the Respondent maintained that it paid the Complainant his statutory entitlements and therefore there was no basis for the claim being made by the Complainant.

CA-00011674-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent denied that the Complainant was unfairly dismissed. The Respondent maintained that having acquired share ownership of the business it introduced a rationalisation process, part of which included a decision to make the Complainant’s role redundant. In coming to this decision, and in response to the Complainant’s submission regarding an unfair dismissal, the Respondent submitted:

1. That it changed the customer service operation from an outsourced provider to an in-house service, and where the Complainant had advised them that there were shortcomings in the outsourced service. As part of these changes it recruited customer relations staff and it maintained that the Complainant was aware of these decisions although he was not actually involved in the recruitment process;
2. That when it acquired the business the efficiency of the Complainant travelling to various depots to collect cheque and cash payments was deemed to be an inefficient use of his resource and where it reallocated some of those duties to a more junior member of staff and required the Complainant to stay at its depot to develop sales revenues. It maintained this was a perfectly rational decision due to business needs, and where flexibility was a key part of the Complainant contract of employment;
3. That it did consult with the Complainant about the changes, and advised the Complainant at the time that it would review this operation in a matter of months;
4. That it made changes to the management of its trucks at the depot which impacted on the Complainant’s duties. The Respondent advised that as a result of its acquisition of the business its own sales representative was also driver and could deal more readily with technical issues regarding the trucks and because of his technical expertise the drivers would have raised technical issues with their own sales rep rather than the Complainant. It further argued that the Complainant was not the transport manager and was never required to manager technical issues regarding the trucks. Notwithstanding it maintained that the general truck management duties still remained with the Complainant and this only changed after he was made redundant, and where these tasks were realigned as part of the rationalisation to its sales representative who had driving experience and was therefore suited to this responsibility;
5. That the Complainant had raised disciplinary concerns about a driver and having considered the concerns it felt it did not warrant the disciplinary sanction proposed by the Complainant. The Respondent therefore maintained that the Complainant was not ignored. The Respondent advised that it discussed this with the Complainant at the time, and this was an operational decision which in no way was intended to undermine the Complainant;
6. The Respondent acknowledged that there was no prior consultation with the Complainant regarding the decision to make his role redundant, and that he was met on 23^rd May 2015 to discuss the redundancy and where matters were confirmed by way of a letter dated on 26^th May 2015;
7. The Respondent contended that the new sales role did not take place until August 2017 which was a month after the redundancy of the Complainant had occurred. It advised that the contract of the new sales role was only a six-month contract and was based on the sales rep approaching the Respondent with a proposal in regard to selling in a certain area which it argued was an area not traditionally performed by the Complainant in that       nature of the sales work (i.e. dropping leaflets, calling to housing estates, attending a promotion stall at a shopping centre) were lower level responsibilities than that held by the Complainant. On that basis it submitted that it did not fill the Complainant’s role, but that a new and different role was created and where the contract was only for six months, and where this new role involved driving and fuel delivery duties. The Complainant acknowledged that it did not approach the Complainant before deciding to fill the new sales role on the basis it was much lower job.
8. That when they provided the Complainant with notice of his redundancy they asked for him to return his phone and his laptop on that day, and whilst it facilitated an opportunity to have his personal data transferred it required the Complainant to take gardening leave and not attend work for the remainder period of his redundancy notice. The Respondent maintained that the Complainant’s contract of employment confirmed that he was obliged to return the company equipment upon leaving his employment.

Findings and Conclusions:

CA-00011611-001 Complaint under Section 39 of the Redundancy Payments Act, 1967

In accordance with Section 7(2)(c) of the Redundancy Payments Act, 1967, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.

Having reviewed the circumstances that led to the dismissal of the Complainant I am satisfied, based on the evidence provided, that the Respondent had decided to change its operations due to a drop in sales. The changes it introduced included a change in many of the duties of the Complainant including visits to the Depots to collect money, changes in the operation of the customer call centre, and changes in the maintenance management of its distribution fleet. All of these changes were integral aspects of the Complainant’s duties and where, in accordance with the Act, the Respondent decided the work for which the employee had been employed (or had been doing before his dismissal) [was] to be done by other employees or otherwise.

I am also satisfied having reviewed the circumstances regarding the employment of a new employee relating to sales duties, that this role appears substantially different to that of the Complainant and requires relief driving duties for the delivery of fuel, skills the Complainant does not have. It was therefore not appropriate to consider the Complainant for that role as it was at lower level, and required driving certification.

I therefore find that the Complainant’s role was made redundant as part of a rationalisation plan after the Respondent took ownership of the shares of the company. As such the Complainant was entitled to a redundancy payment. In this element of his complaint the Complainant maintains that he was not paid the correct redundancy payment based on his contractual rights and the precedent that existed.

The Respondent maintained that the Complainant had no entitlement for an enhanced redundancy payment, and that it paid him his correct statutory redundancy payments. I acknowledge this matter is in dispute between the parties.

However, such matters are outside of the scope for me to decide upon as the complaint is made under the Redundancy Payments Act, 1967 and where this Act lays down the statutory entitlements for employees when being made redundant and limits my power to consider the statutory entitlements only.

CA-00011674-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(c) of the Act states 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 the redundancy of the employee. The evidence provided supports that a decision was made on 23^rd May 2017 to advise the Complainant that his role was redundant, and this decision was followed up by a letter on 26^th May 2017.

As I am satisfied the dismissal was based on a genuine redundancy I therefore do not find the Complainant was unfairly dismissed, albeit the manner in which the Respondent dealt with the Complainant after making its decision, vis- a- vis the return of company equipment and the granting of “gardening leave” appears somewhat impersonal under the circumstances.

Decision:

CA-00011611-001 Complaint under Section 39 of the Redundancy Payments Act, 1967  

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Having decided the Complainant was dismissed due to a redundancy I find he is entitled to a redundancy payment as follows:

Date of Commencement:     22 December 2013

Date of Termination:             30^th June 2017

Gross Weekly pay:                 €1,407.69, where the maximum statutory entitlement is €600 per week.

I therefore order the Respondent to pay the Complainant any shortfall in this lump sum redundancy payment, if any, that may have occurred regarding his statutory entitlements, based on the above calculations and what the Complainant actually received. This award, if any, is made subject to the Complainant being in insurable employment under the Social Welfare Acts during the relevant periods.

It is outside of my authority under the Act to make any recommendation in relation to enhanced redundancy payments beyond the Complainant’s statutory entitlements.

CA-00011674-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

As I have found the Complainant was made redundant the claim for Unfair Dismissal is not well founded and falls.

Dated:   1^st February 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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