Complainant

Respondent

Anonymised Parties

A Stevedore

A Port Services Company

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-00013910-001

13/09/2017

The Complainant, a stevedore, commenced employment with the Respondent, a port services company, on 11th April 2016. He was paid a gross fortnightly salary of €1,300. His employment was terminated on 27 June 207.   A Complaint Form claiming Unfair Dismissal was received by the WRC on 13th September 2017. The preferred redress of both parties is compensation.

The Respondent provided a detailed written submission.

The Respondent Company provides stevedoring services to shipping lines in an Irish Port. These services are provided on a contract basis and a contract may be terminated by either party, normally with a notice period.   In certain circumstances a contract may be terminated with immediate effect, based on a major breach of the Contract Terms. The working relationship between the Respondent and the shipping lines are fundamental to the maintenance of the business and the Respondent must work to meet the lines' requirements and standards.

The Respondent submits that the Complainant worked as a stevedore on the Respondent's contract with Shipping Line X.

Shipping Line X are the Respondent's most significant customer and without them it is most unlikely that the Respondent would remain in business.  

The Respondent submits that in this instance the Complainant's own actions led to a loss of trust in him by Shipping Line X and the Respondent believed they had no option in the matter than to make the Complainant redundant.

The Respondent submits that the basic facts in this case are not in dispute and are as follows:

A BMW X5 jeep, destined for use in an Embassy in Dublin was brought to the port by Shipping Line X. The vehicle was handed over to and stored by the Respondent. Five days later it was delivered to a BMW dealer in Dublin.   The dealer discovered that one of the two keys for the vehicle was missing and they ordered a replacement key.   The dealer then delivered the vehicle to the embassy, with the replacement key to follow.

The following day the embassy called the dealer and told him that the Gardaí had called to the embassy and told them that they had found the missing key on the Complainant.

Subsequently, at an interview with management on 4th April 2017 the Complainant admitted to the Respondent that it was he who had stopped been by the Gardaí and he had had the key in his possession. He confirmed that he had had the key in his possession for over a week before he was stopped by the Gardaí and that it had been washed with his work clothes, and that he had told his mother that he did not know who owned the key.

On 6th April 2017, the Respondent wrote to the Complainant informing him that he was not being rostered for work for the moment until the matter regarding the car key was resolved (the Complainant was unpaid from this date until his employment was terminated on 27th June).

The Respondent reported the Complainant's version of events Shipping Line X, but the client was not convinced.

On 11th April 2017, the senior manager in Shipping Line X wrote to the Respondent and told them that they did not want the Complainant to work for them again.

Following this, Shipping Line X refused to allow the Complainant to return to work on their contract. Communications took place between the Respondent and the Complainant in April and May about the situation. The Complainant said he wished to discuss the matter with Shipping Line X directly and the Respondent held off doing anything until this was done.

In June, the Respondent wrote to the Complainant explaining that the situation with Shipping Line X had not changed and that there was no other job available for him. The Respondent went on to say that they had no option other than terminate his employment, but as he did not have two years' service he did not have any redundancy entitlement. His employment was terminated on 27th June 2017.

The Complainant did not appeal the decision to make him redundant.   However, on the 13th of August 2017 the Complainant sent an ES 1 Form to the Respondent claiming he had been discriminated against. The Respondent replied on the 5th of September denying the allegation.

In their submission, the Respondent cited Section 7 (2) (d) of the Redundancy Payments Act, 1967, to support its argument, submitting that, "in this particular instance, the Claimant had become unqualified for their job, for reasons that did not involve the Respondent in any way. (Akin to a driver losing his licence to drive)."

In concluding, the Respondent submitted that it did not initiate the matter that led to the termination, that they had not played any part in the decision of Shipping Line x to refuse to allow the Complainant work for them and that the Complainant had been very slow in making his own representations to Shipping Line X. The Respondent also put forward that whilst the circumstances that led to the Complainant's redundancy were unusual, there is no doubt that the job he had was no longer available to him and there was no alternative role available to him, leaving the Respondent with no other options.

In direct evidence, the Respondent's Operations Manager stated that the Complainant had a good work record and a clean disciplinary record. However, the trust of the end user is an essential qualification for employees and that the loss of this trust in this instance was caused by the Complainant's own actions.

In cross examination, the Operations Manager was asked whether other work was available for the Complainant. In response, the witness stated that although there is a contract with another shipping line there is no cross over of personnel between the two contracts and that the contract does not allow switching of people from one line to the other.

In response to another question, the Operations Manager elaborated on the matter of an alternative roles. He said that the other shipping line with whom the Respondent has a contract have stated clearly that they would not allow anyone work with them who was not allowed work for the other shipping line. He also said that there was precedence in the company for a redundancy in similar circumstances.

In response to questioning the Operations Manager stated someone had been taken on in the Complainant's role following the termination of the Complainant's employment.

The Complainant put forward that he had been unfairly dismissed.

The Complainant stated that although the Gardaí took the car key from him they only did so because they did not believe his explanation at the time, in fact the Gardaí had never followed up on the matter.

The Complainant put forward that he had been informed by the Respondent that as it was Shipping Line X who had the problem with him there was little they could do to save his job, given the customer's views.

The Complainant stated that he had tried to contact Shipping Line x on several occasions to discuss the matter but they never got back to him. It is his contention that several meetings took place between the Respondent and Shipping Line X to discuss his situation but that he was never allowed attend these meetings.

When asked why he had not appealed the decision to let him go the Complainant stated that he thought he had hit a brick wall.

When asked about his efforts to find work after his termination the Complainant state that he had been unemployed since his work ended with the Respondent. He had found it impossible to find work in the Port and believed that he had been blacklisted, despite having worked in the port with another employer for four years with an unblemished record.

The Complainant asserts that he was unfairly dismissed; the Respondent asserts that the termination of employment was due to redundancy as an important client had said he would no longer work with the Complainant and no alternative roles were available.

The first issued to be decided in this case is whether the Complainant's redundancy was a   genuine redundancy or whether it amounts to an unfair dismissal.

Sec 7(2) The Redundancy Payments Act1967 states that redundancy arises as follows:

a)      the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

 b)      the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

 c)       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, or

 d)      the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

 e)      the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

The Respondent, citing Section 7(2)(d) of the Redundancy Payments Act, 1967, submitted that the Complainant's redundancy was legitimate as he had become "unqualified" for his job. In my view the Respondent has erred in interpreting the situation this way; the Complainant was still qualified to do his job, his qualifications were not the difficulty.   The difficulty and what caused the termination of his employment, as is clear from the evidence, was that the client company no longer trusted the Complainant and would no longer tolerate him working for them. Making an employee redundant on this basis is not legitimate; a redundancy is impersonal, it has to do with the post not the person. The fact that someone else was employed to fill the Complainant's role confirms that the post still existed after the redundancy.

If a redundancy situation did not pertain, then I must consider whether the dismissal was unfair.

Section 6 of the Unfair Dismissals Act 1977 places the onus/burden of proving that a dismissal was not unfair on the employer and Section 6(1) provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(2)(5) further defines the circumstances constituting an unfair dismissal and what is deemed not to constitute an unfair dismissal. In relation to the burden/onus of proof, Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The question to be answered in this case is whether the Respondent has provided sufficient evidence to show substantial grounds justifying the Complainant’s dismissal.

The fundamental facts of the matter are not in dispute. The Complainant admits that he had the second set of keys on his person when stopped by the Gardaí. It is his contention that this was an innocent mistake, there was nothing sinister about it. It is also accepted by the Complainant that it was Shipping Line X who said they did not want him to work on their contract after the car key incident.

The Respondent is of the view that once the customer, shipping Line X, had decided they did not want the Complainant to work for them and no suitable alternative positions existed they had no option other than make the Complainant redundant.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. … (4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Employers may have their employees working for a client. From time to time, a client may request that a particular employee should no longer work for them. Although an employer may have no reason itself to dismiss an employee, if a client company threatens to retract its business due to the presence of a particular employee, then it is justifiable to address the client’s demands for the removal of that employee under the "other substantial grounds" clause in the Act.

However, in such circumstances the employer has responsibilities to the employee. The employer must first inform the employee of the situation, which in this case it did.   It must then discuss the matter with the client, which in this case it did (the Complainant also sought and was granted permission to contact the client company, which he did, but his pleadings fell on deaf ears). The employer must find out if there is a real risk to its business if they do not remove the employee. In this case the Respondent made it clear that it had an existential reliance on the client company and could do nothing to jeopardise the relationship with it. The employer is obliged to seek alternative roles for the employee. In this case, no alternative roles were available due to the agreements with other clients which precluded the switching personnel.

I find that although the Respondent erred in dismissing the Complainant by way of redundancy there were other substantial ground to justify his dismissal. Unfortunately for the Complainant, by continuing to employ him, the Respondent would have jeopardised his relationship with Shipping Line X and put   the survival of the business in danger. In the circumstances, I find the dismissal was not unfair.

The claim of unfair dismissal is not upheld.

Other substantial grounds, client company, redundancy.