Complainant

Respondent

Anonymised Parties

A Horticulturist

A Garden Centre

Representatives

Ellen O’Callaghan B.L. instructed by Martin Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00010969-001

25/04/2017

The complainant had been employed by the respondent since 2014 on a weekly wage of €615.38 as a Plant Area manager and buyer.

His employment was terminated on January 1st 2017 while he was on paternity leave.

The respondent had made a decision to make the complainant redundant in October 2016 as a result of a reorganisation of his business and the closure of one of its outlets.

A new position was being created with broader a general management responsibilities who would not just have responsibility for plant buying but would have overall responsibility for all staff. Previously, these duties had been split between two members of staff.

He did not consider any other options in terms of the reorganisation as the complainant’s role was the one that was being made redundant. There was no selection process.

The respondent wanted to deal with the change as soon as possible as he was due to travel and was not aware that the complainant’s being on paternity leave was an issue.

The complainant received a text message on January 11th 2017 while he was on paternity leave following a period of sick leave.

The message was to ask him whether he was free to attend a meeting the following day, January 12th. He did so.

At the meeting the respondent congratulated him on the birth of his child eleven days earlier and initially made some reference to an approach made by the complainant about a wage increase the previous summer.

The respondent told him he was going to create a new position of ‘Assistant Manager’ and that he, the complainant was being made redundant.

The complainant asked whether there were any other roles open to him, and was told there were not. He was told to ‘clear out his desk’ and to leave immediately.

A dismissal while on paternity leave is automatically unfair on foot of section 20 of the Paternity Leave and Benefit Act, 2016 which defines as void;

‘any purported termination of employment while the employee is absent from work on paternity leave’,

And

‘any notice of termination of the employment of the employment of an employee while the employee is absent from work on paternity leave’

It is not disputed that this happened.

In addition, the complainant submits that section 6(3) of the Unfair Dismissal Acts addresses the situation where a termination is effected on the grounds of redundancy but where there have been breaches of procedure, such as unfair selection (sub section 3), or reasons other than genuine redundancy (subsection 3(a)).

Two issues arise in this case; the first is under the Paternity Leave and Benefit Act, 2016.

The second is whether a genuine redundancy existed in this situation and, if so, were the correct procedures followed to effect it.

The first of these is straightforward. The respondent stated in his evidence that he ‘was not aware that paternity leave was an issue’, by which he meant that he was unaware of the legal position in this regard.

Of course, as those sections of the relevant Act cited in the complainant’s submission above confirm on the simplest of reading it is very much an issue.

The respondent’s cavalier attitude to that legislation was also reflected in his approach to his obligations under redundancy procedures.

It is somewhat incredible that a decision was taken to make the complainant redundant as early as October, according to the respondent‘s own evidence, but no conversation took place with him about it, or the fact that he may have been at risk of it.

Then, in circumstances which could scarcely have been more insensitive, he was given one day’s notice of a meeting at which his employment is terminated and he is told to leave the premises and not to return.

However, it is the total absence of any procedures which is of more concern; the lack of proper or any notice, the lack of a selection procedure or consideration of alternatives.

The complainant relied on the dicta of Mr Justice Peter Charleton in the leading case of JVC Europe Ltd v Panisi [2012] 23 E.L.R 70 [IEHC] 279 where he states;

‘In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing what kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights’.

The judge went on to refer to a termination under ‘the cloak of redundancy’ as being not a redundancy at all, but a dismissal.

The credibility of the respondent is further put in doubt by the fact that the beneficiary of the complainant’s dismissal was the respondent‘s son. He may well be qualified for a new role in the business but that does not relieve the respondent of the need to follow a fair procedure in respect of the complainant.

He did not do so, and indeed his conduct was at the extreme edge of unfairness, as well as insensitivity to the complainant.

On this latter point, lest it be thought that sensitivity should play no part in the rough and tumble of commercial decision making, the complainant also referred to the case of O’Driscoll v Siebel Systems Emea Ltd, in an extract from the highly-respected textbook, ‘Employment Law’, Maeve Regan and Ailbhe Murphy, 2nd Edition, 2017 at [19.07], where, in a reference to the O’Driscoll case, the following appears;

‘Employers are generally required to treat employees with consideration and respect in the context of redundancy. For example, in [O’Driscoll] the claimant was informed of her redundancy the day before her return from maternity leave. In finding that a genuine redundancy situation did not exist one of the factors referred to by the EAT was that the manner in which the respondent had terminated the claimant’s employment was ‘tantamount to summary dismissal’.

This is fully applicable to the current case and the complainant’s case succeeds on all the grounds claimed.

The Unfair Dismissal Act permits compensation in respect of financial losses attributable to the dismissal. Unusually, the complainant has very limited losses.

He was without income for a short period; only three weeks from the date of the expiry of his notice on February 12th until, as a result of extremely diligent job seeking of which evidence was provided, he gained new employment on March 3rd and he has no continuing losses and enjoys a somewhat higher wage than he did with the respondent.

Accordingly, he has limited, actual losses attributable to the dismissal, other than some additional travel costs. In such circumstances the Act permits an award of four weeks’ pay, which I will award having regard to the seriously unacceptable nature of the respondent’s conduct of the matter.

In addition, it was clear that the complainant was motivated by what he considered to be the injustice of the respondent’s behaviour towards him and a finding that he was unfairly dismissed may be of value to him in this regard and in respect of his curriculum vitae and future career.

The complainant was unfairly dismissed and I uphold complaint CA-00010969-001. I award four weeks’ compensation in the amount of €2461.52 subject to the usual statutory deductions.

Unfair dismissal under ‘cloak of redundancy’.