FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : NURENDALE UNLIMITED IN LIQUIDATION (REPRESENTED BY DARAGH MACNAMARA B.L., INSTRUCTED BY NURENDALE UNLIMITED IN LIQUIDATION) - AND - PATRICK PHELAN (REPRESENTED BY DAVID ROBERTS B.L., INSTRUCTED BY EAMONN HAYES, SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00001893.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 30 May 2017 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 24 April 2018. The following is the Court's Determination:
DETERMINATION:
Background to the Appeal
This is Mr Phelan’s (‘the Complainant’) appeal against a decision of an Adjudication Officer (ADJ-00001893, dated 21 April 2017) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complaint’s claim of unfair dismissal against his former employer, Nurendale Unlimited (In Liquidation) t/a Panda (‘the Respondent’), was not well-founded. The Notice of Appeal was received by the Court on 30 May 2017. The Court heard the appeal in Waterford on 24 April 2018 in the course of which it received evidence from the Complainant and two witnesses for the Respondent: Mr Chris Noonan, Commercial Manager and Mr Nicky McGrath, former Group Compliance Manager. Mr Noonan was the Complainant’s line manager for most of the latter’s period of employment. Mr McGrath made the decision to terminate the Complainant’s employment.
Employment History
The Complainant was employed by the Respondent as a driver from 10 May 2012 until his dismissal on stated grounds of redundancy on 2 September 2015. He received a written contract of employment dated 8 June 2012. His initial rate of pay was €12.00 gross per hour. Clause 2 of the written contract requires a high degree of flexibility from the employee with regard to hours of work and work patterns. It provides as follows:
- “You will be required to work such hours as may be reasonable for the proper performance of your duties. In general, your pattern of work and hours will be determined by reference to the business requirements of Panda Waste Services with due regard to your health, safety and general well-being. Within these work patterns, normal start and finish times, attendance, time off in lieu, days off etc. will be notified and be clearly identified with you by consultation.
Panda Waste Services will work with you to balance both business requirements and your personal and family commitments.
The salary is inclusive of all such flexibilities. Flexible working hours is a feature of the job but where these hours are excessive time off in lieu will be considered.”
It is common case that the first two years of the Complainant’s employment with the Respondent were uneventful. He worked in the commercial section of the business driving a waste collection truck with one helper. In addition to his driving duties he was also required to assist the helper as needs be. His normal hours of work were between 5.00 a.m. and 3.00 or 4.00 p.m., Monday to Friday. According to Mr Noonan, the Complainant was regarded as a good and dependable worker.
However, on 20 June 2014 the Complainant suffered a workplace injury which resulted in his being absent on certified sick leave for a period of six months. In January 2015 he was certified fit to return to work on light duties. The Respondent, therefore, placed him on an evening shift between 3.00 p.m. and 11.00 p.m./midnight. He operated out of the Respondent’s facility in Ballymount and his duties involved almost exclusively driving as the truck was also staffed with two general operatives/helpers. The Complainant continued in this position for approximately four weeks after which he informed Mr Noonan that evening work did not suit his domestic circumstances and that sitting for long periods was aggravating his back condition. He enquired of Mr Noonan if an alternative, more suitable, role could be found for him. Mr Noonan, therefore, temporarily transferred the Complainant to a domestic refuse collection route in the Slane area for a number of weeks. This was a morning route – typically 5.00 a.m. to 2.00 p.m. each day. It appears to have suited the Complainant’s circumstances and involved a very small amount of manual lifting on his part. Thereafter, the Complainant was transferred to the Respondent’s Cappagh depot where he was required to drive a truck delivering and collecting commercial wheelie bins in the Fingal area. The Complainant again indicated that this work was not compatible with his injuries. Mr Noonan then transferred him to a role which required him to drive a large van and collect bins using a tail lift on the van. Again, this was a temporary position that was only open to the Complainant for four to six weeks as holiday cover for the permanent incumbent. Nevertheless, the Complainant reported to Mr Noonan that he found the work too physically demanding because of his back injury. Mr Noonan provided him with a helper for a couple of days but this did not alleviate the Complainant’s issues.
Mr Noonan met with the Complainant, along with Mr McGrath on 27 May 2015 to discuss possible solutions and to identify a suitable driving role for the Complainant. It was agreed at this meeting that Mr Noonan would enquire from his counterpart in the skips section of the business if there would be an opening there for a driver during the busy summer season. He did this and – as suitable work was available – the Complainant transferred to this section. The work there proved to be very suitable for the Complainant as it required very little physical effort on his part and it involved exclusively day-time driving, commencing usually at 5.00 a.m. The Complainant told the Court that this was by far and away the most suitable role he had been placed in following his accident.
The demand for skips, it appears is quite seasonal. The manager of the skips section told the Complainant in or around the end of August 2015 that he was running out of work for the Complainant. The Complainant then contacted Mr Noonan to enquire what work would be available for him when he would no longer be required to deliver and collect skips.
There is a conflict of evidence between the Complainant, on the one hand, and Mr Noonan and Mr McGrath, on the other, about a meeting which the latter two witnesses told the Court took place on 27 August 2015 at the Respondent’s facility in Cappagh but which the Complainant is adamant never took place. Mr McGrath and Mr Noonan’s evidence is that Mr Noonan clearly conveyed to the Complainant at this meeting the Respondent was running out of options and that, as a result, the Complainant’s dismissal - on grounds of either incapacity or redundancy – was on the cards. Mr McGrath also stated in evidence that he had drafted a contemporaneous note of that meeting which he subsequently typed up as a series of bullet points. A copy of the note was submitted in evidence to the Court. The final three bullet points of the note read:
- •“Informed that we were running out of options here – offered numerous positions within the company and declined same. If he was declining the night work which had no pulling or dragging – It was driving only role.
•Pointed out options if he did not take the driving job and that these options were a) incapacity or b) redundancy. -Stated that he would have to think about that.
•Chris undertaking to contact all managers if there was a driving role in any section.
•Reverting ASAP once Chris had established if any role available.”
The Complainant’s version of events is that he had a telephone conversation with Mr Noonan in the course of which the latter informed him that the evening route which he had worked on in January 2015 would be available for him. The Complainant says that – contrary to what Mr Noonan stated his evidence to the Court – he did not reject this option as unsuitable but asked Mr Noonan to set out in writing exactly what was on the table so that he could consider it carefully.
It is not necessary for the Court to attempt to reconcile the witnesses’ conflicting evidence about the meeting that allegedly took place on 27 August 2015. Even if it did occur and what transpired is accurately reflected in the note Mr McGrath purports to have made of the conversation that he says took place between Mr Noonan and the Complainant, it is abundantly clear to the Court that the Complainant could not be assumed to have received an unequivocal communication to the effect that his employment was going to be terminated shortly thereafter.
In any event, Mr Noonan did not identify any day-time driving role that didn’t involve manual work elsewhere in the business. He consulted with Mr McGrath, the Group Compliance Manager. Mr McGrath – who also advised the Respondent on HR matters - prepared a draft letter of dismissal on grounds of redundancy which Mr Noonan presented to the Complainant in Slane on 2 September 2015 along with a cheque to cover his statutory redundancy and notice entitlements. The Complainant’s employment was terminated with immediate effect at that point in time.
Mr McGrath told the Court in the course of giving his evidence that he made the decision to terminate the Complainant’s employment on grounds of redundancy because in his view this was the fairest way of dealing with him in circumstances where he was refusing to return to the night shift and no other suitable driving work was available for him. It was the witness’s opinion that the Complainant could also have been dismissed on grounds of incapacity or for insubordination.
The Court also heard extensive evidence from the Complainant in relation to his employment history with the Respondent; his workplace accident in June 2014, followed by a period of some six months of sick leave; his return to work in January 2015 while certified fit for light duties only; the sequence of driving roles to which he was assigned between that date and his dismissal on 2 September 2015; and his efforts thereafter to mitigate his loss. The Complainant told the Court that he has never accepted that he was lawfully made redundant and has refused to cash the cheque for €5,500.00 he received from the Respondent in September 2015. His evidence was that he was unable to apply for work for almost a year after his dismissal because of the impact his dismissal had on him personally and on his family life. He commenced a training programme in late September 2016 in preparation for starting his own business later that year. He is now successfully running a catering/deli business on a self-employed basis with some grant assistance. He says he is taking home about €1,000.00 per month from the business in addition to the grant payments.
Discussion and Decision
Counsel for the Respondent submits that the Complainant was fairly dismissed on grounds of redundancy or in the alternative on grounds of incapacity. In support of his submission he referred to the Court to the wording of section 6(4) of the Act:
- “(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.”
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
No evidence was given to the Court that the Respondent had determined to carry on its business with a lesser number of drivers for reasons unconnected to the Complainant. In fact, the evidence that was before the Court unambiguously links the Respondent’s decision to terminate his employment to the difficulties experienced by the Respondent in finding a non-seasonal, long-term driving position that suited the Complainant having regard to the physical limitations placed on him as a consequence of his workplace injury and the Complainant’s preference, for domestic reasons, not to work on a night shift.
Furthermore, the Court finds that fair procedures were not followed in effecting the termination of the Complainant’s employment. He was not told in unambiguous and unequivocal terms that his position was at risk of being made redundant; he was not informed of any objective, impersonal selection criteria to be applied by the Respondent in his case; he was not afforded the opportunity to propose alternatives to redundancy. In short, the Respondent’s decision was based on nothing more than a sham redundancy as an attempt to justify the dismissal of the Complainant in respect of whom Mr Noonan stated more than once in his evidence that he was an excellent and a reliable worker.
The Court, therefore, finds that the Complainant’s dismissal was both substantively and procedurally unfair. Having regard to the Complainant’s consequent financial loss and his efforts to mitigate his loss, the Court measures the appropriate compensation under the Act at €12,000.00.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
18 May, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.