Complainant

Respondent

Anonymised Parties

General Operative

Respondent

Representatives

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00013807-001

07/09/2017

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

CA-00013807-002

07/09/2017

The complainant is seeking his entitlement to a redundancy lump sum payment. He also maintains that he was unfairly dismissed on 16 August 2017 where he claims that his employer fired him without giving a reason.

The respondent has not engaged.

The complainant claims that he started working with the respondent on 10 July 2007 as a General Operative and worked there continually for over 10 years. He claims that his duties included welding, steel painting, machine maintenance, compaction programs for steelwork and assembly of structures. He claims that he worked from 7:30am until 5:30pm each weekday and from 7:00am until 2pm on Saturdays and was paid €554.17 gross per week.

The complainant said that he returned to work from a family holiday on 11 August 2017 and felt that that the owner, Mr. A, was in a bad mood with him. He said that on 16 August 2017 Mr A walked into the hall where the complainant was working at 4pm and the complainant approached him to tell him that there was no material left for a job he was working on. The complainant said that his employer started screaming at him and told him to get out and leave. The complainant said that he was financially in trouble at the time, particularly after his holidays, and Mr. A dismissed him knowing that he had little to no money and needed to work.

The complainant said that he had a serious hand injury some time earlier while working with the respondent, where he lost a finger. He said that he was currently pursuing a personal injury claim against the respondent and from the moment of the accident, Mr. A’s relationship with him had changed and he claimed that Mr. A was making life very difficult for him and exerted a lot of pressure on him at work. However, he did not expect that Mr. A would dismiss him as he had done nothing wrong and the respondent seemed to have loads of work and was very busy at the time.

The respondent did not attend the adjudication nor did it send in a submission.

I am satisfied that all parties were put on notice of the hearing several weeks ahead of the scheduled date. I am satisfied the respondent’s address is one and the same as that the complainant has provided in documentation submitted to the Workplace Relations Commission and therefore I am satisfied that it was on full notice of the hearing.

Based on the foregoing I am completely satisfied that there was no reason before me to postpone the hearing and not to continue into my investigation of this case.

CA-00013807-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

The Relevant Law

Section 7 of the Redundancy Payment Act 1967, as amended, reads,

“7. (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of F18 [ four years ] ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [ for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(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,]

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977 ,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.” (my emphasis added)

The complainant gave uncontroverted evidence that his employment was terminated on 16 August 2017. He said, that he was injured in a workplace accident in March 2015 and lost a finger. He has taken a case against the owner and his relationship with the owner has deteriorated ever since. However, he said that he is aware that the respondent was very busy at the time, there was a lot of work on stream, employees had to work long hours and there was much to do. I note the complainant said that two or three other workers took up positions with the respondent after he and another, his brother, had left.

Section 7(2A) as highlighted above is clear as to when an employee is dismissed but not dismissed by reason of redundancy. It is clear from the complainant’s own direct evidence that he was let go and, that his brother also chose to also leave but everyone else employed there was kept on. It is also his evidence that the respondent took on a replacement or replacements for the complainant since he has left his employment.

As this element of the complaint relates to redundancy legislation, section 7(2A) of the Act is sufficiently clear to determine when a dismissal shall not be considered as a dismissal by reason of redundancy and this has been supported by case law. The key question that I must address is whether the job and not the individual employee was made redundant as mentioned in McGeehan v Park Developments UD 950/2008.

The complainant’s own evidence appears candid and clear. I am satisfied that he was indeed forced out from his job but that his position still remained open. The situation here before me for consideration therefore fits squarely with the exemption set out in Section 7(2A)(c) above namely, “an employee who is dismissed shall be taken not to be dismissed by reason of redundancy …. if the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State.”

Accordingly, I am satisfied that this is not a case of redundancy and I cannot accept that the complainant was dismissed by his employer by reason of redundancy.

CA-00013807-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

The Relevant Law

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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(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 substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of   the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

As noted above in the previous section the complainant gave uncontroverted evidence that his employment was terminated on 16 August 2017. He said, that he was injured in a workplace accident in March 2015 and lost a finger. He has taken legal action against the owner, which was ongoing at the time of the hearing, and his relationship with the owner has deteriorated ever since.

The respondent failed to attend the hearing and failed to offer any substantial grounds justifying the complainant’s dismissal. In those circumstances, by operation of the law, I find the dismissal of the complainant by the respondent to be unfair.

I find that, in light of the fact that the complainant has secured employment since his dismissal, that compensation is the appropriate remedy in this case.

I have carefully considered the submission of the complainant as regards his earnings and the financial loss suffered as a result of his dismissal.

I note the fact that the complainant secured employment approximately three months and one week after his dismissal and I note that this new employment carried a higher rate of pay than than which he had enjoyed in his employment with the respondent.

In respect of mitigation, the complainant submits no documentary evidence of seeking employment from the date of dismissal. I have been offered an oral submission as regards the complainant’s attempts to mitigate his loss in that respect. He said that he was “just asking around” within his own circle of family and friends if they knew of any jobs. I note that he found alternative employment three months and one week following his dismissal, approx. 14 weeks later.

I am satisfied that the complainant is entitled to recover the financial loss he incurred for that 14-week period. However, I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v. Superior Express limited UD 1227/2014 where the EAT held that the standard required is a high one. Therefore, I must find that the complainant has not fully endeavoured to mitigate his loss.

The complainant was paid €554.17 per week and he found work approx. 14 weeks later. On the basis of my findings above I declare the complaint is well founded. I direct the respondent to pay the complainant compensation of €5,000 within 42 days of the date of this Decision. This award of compensation takes into account the complainant’s failure to fully mitigate his loss which I measure is just and equitable in all the circumstances of this matter.

CA-00013807-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

I determine that the complainant is not entitled to a statutory redundancy lump sum payment pursuant to the Redundancy Payments Acts.

CA-00013807-002 - Complaint seeking adjudication by the Workplace Relations Commission 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.

Pursuant to the Unfair Dismissals Act, I find that the complaint of unfair dismissal is well-founded and the respondent shall pay to the complainant compensation of €5,000 (five thousand euro) within 42 days of the date of this Decision.

Unfair Dismissals Acts - Redundancy Payments Act - on full notice of the hearing – not entitlement to a redundancy lump sum payment – unfairly dismissed - compensation.