ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006562

Parties:

Complainant           Anonymised Parties        Respondent

A Stud Manager                                            A Bloodstock Company

Representatives 

M F Nolan Solicitor                                             ESA Consultant

Complaint(s):

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-00008576-001 02/12/2016

Date of Adjudication Hearing: 17/08/2017 Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).  

Background:

The Complainant was alleging unfair dismissal.

Summary of Complainant’s Case:

  The Complainant was employed from October 31st 2014 to October 1st 2016 as a Stud Manager. He was summarily dismissed and the told his position was redundant.   Immediately after his dismissal he was replaced by another person doing the same job with the same duties. This person was even recruited prior to his termination of employment.   The Complainant was not given proper procedures with regard to this termination.  

Summary of Respondent’s Case:   The Respondent asserts that a redundancy arose and the Complainant was put on notice of same.   The Complainant was paid all his entitlements including, holiday pay, contrary to his averments.   The Respondent's operation was newly established in January 2015 and comprised of a General Manger, Stud Farm Manager and manage 28 horses. The projections was to build the business over the coming years and employ several staff. However, for many reasons unconnected to the Complainant who was a good worker, (albeit he was the subject of a disciplinary warning in March 2016 for serious breaches of confidentially), the business did not achieve the desired turnover or business in 2016. The Respondent held meetings in January, through to August to discuss the state of the progress and a decision was taken to scale back operations. On the September 8th 2016 the Respondent met with the Complainant. Such was evident the lack of trading that the Complainant asked his Manager before the meeting if he should be looking for a new job. The Complainant was updated on the concerns of the business and the risk. The Stud lost one of its two major Clients which only deepened the problems. On the 25th September 2016, the Complainant met with Management to scale back the operation was made. The decision was made that there was no requirement for a General Manager and a Stud Manager, but there was a need for a General Operative at best. The Complainant was told that he would automatically be given the new role if he desired the position. The duties of the Stud Manager would now be done by the Genera I Manager. The Complainant would no longer perform these, but he rejected the alternative position.   The Complainant was told that the role would finish in November and albeit he was not entitled to redundancy per say pursuant to section 4 (1) of the Redundancy Payment Act 1967. The Respondent acknowledging that the circumstances were outside of everyone's control they would make him an offer in the circumstances. The Complainant was offered up to €10,ooo.oo, which was equal to approx.3 months' pay. The Complainant thanked the Respondent and stated that would be grand.   In or around October 7th the Respondent were reviewing the property and procedures. During the conversation the Respondent enquired if the Complainant was having any luck with new employment. The Complainant's mood took a sudden negative turn. The Complainant said he had taken advice from his Solicitor and that this was an unfair dismissal and he was entitled to two years wages. The Respondent advised that it was a redundancy, that he was offered alternative employment and rejected it. The Respondent a s ked if he wanted to reconsider. The Complainant was adamant that wanted two years' salary. The Respondent asked the Complainant if you are not happy not to work his notice period but he would be paid in lieu. The Complainant without further notice left the property taking with him the keys for the office and the Company jeep. The Complainant refused to respond to any phone calls or text massages, and in effect locked the Employer out of his office. On the October 3rd 2016, the Respondent received correspondence from the Complainant's Solicitor alleging an Unlawful Dismissal. In October the Respondent through its Representatives replied setting out the facts of the redundancy. Letters were sent to the Complainant demanding the return of the property to no avail. Locksmiths had to be employed under letters of assurances from the Company and its advisors before they would accept instructions to change the locks. While the Complainant was entitled to the use of the jeep during his notice period he eventually returned the jeep.     Mitigation:   The Complainant was observed working at various venues since he walked off the site, including sales meetings for another Bloodstock Farm, and with his brother who between them operate a business selling horses.   The Respondents say;   a) There was a genuine redundancy.   b) That the selection was fair as there was only one position for selection.   c) That without prejudice to the generality of the circumstances, there was no alternative at the time other than making the position redundant. The Complainant refused alternative employment, that his duties are not undertaken by another employee.   The General Operative was employed by way of contract pursuant to the role offered to the Complainant. The Respondent will also say that had the Complainant accepted the role he would still be employed.     Law:   The Unfair Dismissals Act 1977 section 6 (3) states:   Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either- (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or   The Complainant was advised of the redundancy on the 24th September 201 6.   The redundancy would take effect on the 3dh November 2016.   The Complainant had no comparators therefore was not unfairly selected. There was a genuine redundancy.   The Complainant was offered alternative employment.   The Complainant had at all material times pursuant to this matter legal advice and did not have to walk off the job, but could have under instructions made an application to the WRC or sought a short notice injunction, worked out his notice and none of which he selected.   Decision:   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.   The core issues in this case are as follows; Was there a genuine redundancy or was the Complainant unfairly dismissed? Did the new person hired assume most or all of the Complainants duties? Was the Complainant given a reasonable opportunity to consider the revised role? Did the Complainant contribute to his own termination of employment in any or some significant way? How did the termination comply with the legal laws regarding dismissal of the Complainant?   From the evidence provide, which was at variance with each other, no clear discernible positon could be deduced from the evidence. There was much conflicting evidence in this case and in the subsequent communications regarding the hiring of a new employee and their role. It would appear from the job duties supplied of the new hire, especially in such a small enterprise, that there was overlap in the role of the new hire and the Complainant. In such a small enterprise the Respondent had the responsibility to go to considerable lengths to try and maintain the employment of the Complainant and not hire a new person before exhausting all avenues to see if the Complainant would and could stay in their employment. There was also more than a hint of a personality and other conflicts between the Complainant and his Manager in this case. Having considered all the evidence provided and the oral submissions at the Hearing I find that the Complainant was unfairly dismissed and his position was not redundant due to the overlap of his role and the new hire role that was hired. He therefore was unfairly dismissed as his role was not redundant. I am also concluding that the Complainant, in some ways, contributed to his own termination by some of his actions and therefore he has to accept a degree of contribution to his dismissal. Procedures to terminate the Complainant were not best practice with inadequate communication of the purpose of some meetings and lack of opportunity to have representation. Given all of the above I award the Complainant 17,000 Euros compensation for Unfair dismissal, less the amount received in redundancy payment already. This amount reflects the unfair dismissal decision but also the Complainants contribution to his dismissal.    

Dated:   11th January 2018  Workplace Relations Commission Adjudication Officer: Peter O'Brien  

Key Words:  Unfair dismissal or redundancy