Complainant

Respondent

Anonymised Parties

A Mechanic

A Garage

Representatives

Cosgrave Solicitors

Business & Commercial Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009159-001

18/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009159-002

18/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00009159-003

18/01/2017

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

CA-00009159-004

18/01/2017

The complainant is a car mechanic and seeks a redundancy lump sum payment and other forms of redress. The respondent denies the claims.

The complainant outlined that he worked for the respondent between the 1st May 2012 and the 28th September 2016. He is entitled to two weeks of notice pay at the end of his employment. He did not receive a statement of the terms of his employment. A data access request of the respondent only yielded pay slips, P60 documents and a P45. The Terms of Employment (Information) Act is a strict liability provision and he had been prejudiced in not being provided with a statement. He outlined that his salary was €780 per week gross. He had been aware of the difficulties with the lease of the respondent premises. He acknowledged that he had been offered employment with a named entity, this was a trading name and it turned out that it was the same company as the respondent. His hours of work were to be reduced to three days per week and he was told that he would be paid cash in hand and off the books. The new role was to be scaled back as the garage would not do full services of vehicles. The complainant indicated that he was not pursuing the complaint made pursuant to the Unfair Dismissals Act.

The complainant said that on the 22nd September 2016, the respondent director informed the complainant not to order any more oil. They discussed the future of the business and he knew that the landlord was looking for more money for the renewal of the lease. The complainant was informed that his job was okay but that his hours would be reduced to three days per week. He was told that he was to be paid cash in hand and that he could also claim the dole. It was to be a reduced role, where they would not be providing full servicing of vehicles. Cars were to be sold without warranty and he did not think that there was a role for a mechanic because so little servicing was to be done. There was no mention of this being temporary short-time. The complainant said that the respondent had sold garage equipment to one buyer on the 28th September 2016. This included lifts and compressors. He had attended the garage to which the respondent wished him to move to and had not seen a workshop. It was his belief that the new business did not have a mechanic and did not have the facilities for a mechanic. The complainant said that at his original place of work, he had worked well with two sales people and one valeter.

In cross-examination, it was put to the complainant that the respondent would deny making the offer of three days’ work, cash in hand. The complainant was asked whether he had considered the offer of transfer; he replied that his concern was that cars would be sold to the trade, as is. It was put to the complainant that there was a need for a full-time mechanic in the alternative garage. The complainant thought about the offer over the weekend after which he and the Director met in a named coffee ship. The meeting last 15 to 20 minutes and they left on good terms. It was put to the complainant that he mentioned starting his own business at the meeting; he replied that he mentioned an option to do work on his own. It was put to the complainant that the respondent suggested that he could continue his nixers; he agreed and this was for family and friends and there was no reference to this in the transfer. He had visited the proposed site on bringing cars back from auction. There was no indication from the respondent when he would return to a five-day role. The respondent had never asked him about the best way to set up the new garage.

In closing comments, the complainant referred to the conversation of the 22nd September giving him notice of the end of his employment. He could have no confidence as to his job security, in particular as the equipment was sold or skipped. There were no facilities for the complainant to work in at the new facility. He had been made redundant.

The respondent accepted that a contract or statement was not provided to the complainant and submitted that he had not incurred any material detriment. The terms of employment could be divined from other sources. In respect of the minimum notice claim, the complainant had resigned after not accepting the new position. The complainant’s position had not been made redundant. The alternative offered to him was in a better location and the complainant would not lose salary. The garage needed a refit, so it was proposed that the complainant would go on a three-day week for two weeks. The complainant did not fully interrogate the offer and made no reasonable assessment of it. He mentioned a new business at a named location. The respondent submitted that this had been a restructuring within the same employer. Other accommodations could have been made. The offer made by the respondent complied with section 9 of the Redundancy Payments Act. The complainant had failed to submit an RP9 form, preventing the respondent from serving counter-notice. The respondent opened authorities, including WRC adjudication reports and decisions of the Employment Appeals Tribunal. The refit would have taken two weeks but the complainant just left without serving notice pursuant to the Redundancy Payments Acts. It was submitted that there were three legs to the test in the Redundancy Payments Act: an offer must be made, it must be unreasonable to refuse and there was no redundancy even with the changed location of work.

The Director outlined that he was a company director and operator of the business. They traded from a named facility as well as the site at which the complainant previously worked. All staff interacted together. The respondent had been at the location where the complainant worked for ten years. It had three leases and the last lease came to an end in September 2016. The respondent had sought to renegotiate the lease and was told that another business had offered short of three times what they were paying in rent. This took place in early September 2016. The Director spoke with staff, stating that they would move to the other site. One colleague was let go as the respondent operated “last in, first out”. Two colleagues moved to the other site.

The Director outlined that he and the complainant met for coffee. He ran through the plan and that there would be nicer conditions. There would be a fit-out and that he might need the complainant to go on a three-day week but that he would need the complainant to be up-and-running. The Director hoped that the complainant would work from the first Monday in October and there was no shortage of work. He was planning to double the size of this facility. He said that while there was trade element to this site’s work, it also offered servicing and warranties. He had to subcontract this work when he had no mechanic and no replacement mechanic was found. The Director knew that the complainant wished to go out on his own. They spoke over coffee for about 90 minutes and the complainant went through his business plan. This related to customer vetting, where the prospective car buyer is the customer. The Director gave the complainant information about his website designer. He stated that the complainant had always done nixers, after hours. The complainant’s last words had been about “a bit of redundancy” and the Director replied that the complainant was resigning. He stated that there was no half a workshop in the new facility and they were waiting to recruit a new mechanic. They could do minor works until then. In respect of the former facility, the respondent had sold three out-buildings and the purchaser also took materials. The complainant took his own tools. The Director never offered to move the complainant to work cash-only. The Director never paid people in cash.

In cross-examination, the Director said that the respondent now has five staff and that one named staff member recently left. There had not hired a replacement mechanic, despite placing advertisements for the role. There was a shortage of mechanics. He said that at the moment, the garage was not fully fitted for a mechanic and that the equipment depended on the skills of the mechanic. The equipment at the old facility had been old and worn-out, and not worth saving. The compressor was newer and he had offered it to the complainant. It was put to the Director that the complainant could not have worked without equipment at the new facility; he replied that the complainant would still have been able to work, for example using the ramp. The compressor was a luxury and not essential. The Director said that he recalled the Thursday conversation and that he had been nervous about this. He asked the complainant not to order more oil as they would not need more oil in the old facility and it could not be transported to the other facility. It was put to the Director that his letter does not refer to the complainant’s three-day week as being temporary; he replied that this was a worst-case scenario and for a couple of weeks during the fit-out. The Director said that the respondent still had a diagnostic compressor.

In closing comments, the respondent submitted that there was no redundancy as the offer of another role had been made to the complainant. There was the contingency plan for fitting out the other facility. All mechanics have their own tools, so the complainant could have worked at the other facility. It was now expensive for the respondent to subcontract this work. It was submitted that the complainant’s salary had been €780/week gross in 2016, but that his total yearly income in 2015 had been €41,000.

The complainant commenced working for the respondent at a named southside location on the 1st May 2012. In September 2016, the respondent informed the complainant and his colleagues that this facility was to close. Reference was made to a westside facility operated by a trading name associated with the respondent. There were two conversations between the complainant and the respondent director on the 22nd and the 26th September 2016 regarding this matter. There followed a “battle of letters” between the complainant and the director. The complainant’s letter of the 27th September 2016 refers to the closure of the southside facility and the offer to move location on a three-day week with “amended” salary terms. The complainant asserts that he has not resigned and that a redundancy situation arises if his terms and conditions are not preserved. The respondent replies by letter of the same date. This acknowledges confirmation that the complainant wishes to cease his employment and not to move to the new facility. It wishes the complainant the best of success with his new business venture.

The complainant makes four complaints and at the adjudication, withdrew the complaint of unfair dismissal. I make the following findings in respect of the three outstanding claims.

CA-00009159-001 Terms of Employment (Information) Act

The respondent accepts that a statement of the complainant’s terms of employment was not provided to him within two months of the start of his employment. Section 3 provides that this statement shall include details of the employee’s place of work and the title or nature of the employee’s work. This information was relevant to what occurred in September 2016 and I make an award of €1,000 for the breach.

CA-00009159-002 Minimum Notice and Terms of Employment Act

There was significant conflict between the parties over whether the complainant tendered his resignation. Taking the evidence overall, I prefer the complainant’s evidence. I make this finding because I am not satisfied that the offer of a three-day role was short term, pending a fit-out. If this was the case, the respondent would have proceeded with the fit-out no matter what action the complainant took. I am satisfied that the offer was for three days in the terms described by the complainant. Following on from this finding, I find that the complainant did not resign but was informed of this change to the nature and location of his employment. In the circumstances, this amounts to notice of the end of his employment. This notice was given on the 22nd September 2016 and the complainant is entitled to one week’s additional notice pay. This is €780 gross.

CA-00009159-003 Redundancy Payments Act

As indicated above, I find as fact that the respondent informed the complainant of the closure of the business and made the offer of three-days’ work per week at another location. I am not satisfied that the offer was short-term or restricted to the time it took to carry out the fit-out. I am struck that the fit-out did not take place and that the garage continues without a mechanic. I note that the complainant’s letter of 27th September 2016 refers to altered pay arrangements, but I make no finding on the allegation of working off the books. Given that what was on the table was a reduced working week without a fully fitted out facility, I find that a redundancy situation arose within the scope of section 7 of the Redundancy Payments Act.

Sections 8 and 15 of the Redundancy Payments Act address the situation where an employer makes an offer of alternative employment to the employee. The question is whether the complainant was unreasonable in turning down the offer. In considering the above provisions, and case law such as Heavey v Casey Doors Ltd RP1040/2013, I find that the complainant acted reasonably in not taking up the offer made by the employer. I reach this finding for the following reasons. First, the proposed alternative was for three days per week and I have found that this was not presented as a short-term change. Second, I note the change in the nature of the role in a facility that does not have the equipment for a mechanic to perform their full role (as evidenced by the respondent now sub-contracting the work.) Taking these factors into account, I find that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts. I note the following criteria: the employment commenced on the 1st May 2012 and came to an end on the 28th September 2016. The complainant’s rate of pay was €780 per week and the redundancy award is subject to a maximum weekly income of €600.

CA-00009159-004 Unfair Dismissals Act

The complaint was withdrawn by the complainant and is deemed not well-founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00009159-001

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,000.

CA-00009159-002

I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well-founded and the respondent shall pay to the complainant redress of €780.

CA-00009159-003

Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I determine that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, based on the following information:

Date of commencement of employment: 1st May 2012

Date of notice of termination of employment: 22nd September 2016

Date of end of employment: 28th September 2016

Weekly gross pay: €780 per week

CA-00009159-004

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 complaint was withdrawn by the complainant and I deem it not well-founded.

Terms of Employment (Information) Act

Minimum Notices and Terms of Employment Act

Redundancy Payments Act