ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006203
Parties:
Complainant | Respondent | |
Anonymised Parties | An Employee | A Community Development Co. |
Representatives | Dan Walshe, Barrister Brendan Looby, Solicitor | Brian Dolan Peninsula Group Limited |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00008428-001 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00008428-002 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00008428-003 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00008428-004 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00008428-005 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act 1973 | CA-00008428-006 | 25/11/2016 |
Date of Adjudication Hearing: 10/08/2017 & 26/04/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act 1991, Section 8 of the Unfair Dismissals Act 1977, Section 39 of the Redundancy Payments Act 1967, Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 and Section 11 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
At the outset of the hearing, the Representative of the complainant confirmed that the only matters for adjudication are as follows: CA-00008428-001 Payment of Wages Act 1991 CA-00008428-002 Unfair Dismissals Act 1977 All other matters were withdrawn. The Complainant contends that the Respondent acted in contravention of the Payment of Wages Act 1991 by laying him off in January 2016. The Complainant further contends that he was unfairly dismissed in May 2016 by reason of redundancy and that his selection for redundancy was unfair and not in accordance with fair procedures.
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Summary of Respondent’s Case:
At the outset of the initial hearing of the matter, the Respondent raised a preliminary point regarding the lodgement by the complainant of a personal injuries claim, resulting in duplication of proceedings and the consequent potential double recovery regarding the Complainant’s losses under the Unfair Dismissals Act. A second preliminary issue was raised in relation to the Payment of Wages Act regarding the statute of limitations.
Preliminary Issues
In relation to the claim of unfair dismissal:
The Complainant was invited to a meeting on 13th October 2014 where he was informed that he was “at risk” of redundancy. Following a number of subsequent meetings, the Complainant was informed on 19th April 2016 that his role was to be made redundant following the expiry of his notice period on 31st May 2016. On 29th September 2016, the Complainant lodged “Form A” with the Personal Injuries Assessment Board (PIAB). Under the Special damages section, the Complainant has claimed a loss of earnings of approximately €55,000. These losses are claimed from 13th October 2014 to the date of the form and ongoing. On 11th November 2016 the Complainant then lodged the present complaint under the Unfair Dismissals Act and the Payment of Wages Act.
It is argued that the personal injuries claim represents a duplication of proceedings, and it is submitted that both sets of proceedings cannot proceed and that one set must be withdrawn. Case law was submitted in support including Parsons v Iarnrod Eireann [1997] 2 IR 523, Johnson v Unisys Limited [2001] 2 All ER 801. The case of Henderson v Henderson is well established and has been applied by the WRC and Labour Court on numerous occasions. In relation to the case of Culkin v Sligo County Council [2017] IECA 104, Hogan J. stated that the focus of Henderson was on relief which might have been obtained in the first set of proceedings and the plaintiff could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in one set of proceedings. It is argued that there are distinguishing factors between Culkin v Sligo County Council [2017] IECA 104 and the present case. Culkin involved alleged duplication of Personal Injury and proceedings under the Employment Equality Acts. In the present case, there is no impediment to the Complainant bringing their case in the first set of proceedings (the High Court proceedings).
In relation to the claim under the Payment of Wages Act 1991, it is argued that in light of the date of lodgement of the claim papers, the relevant period for the purposes of the claim is from 12th May 2016 to 12th November 2016. As the Complainant was employed from 12th May 2016 to the expiry of his notice period on 31st May 2016, it is submitted that this is the operative period for the claim. The Complainant has alleged that he was not on a period of lay-off at this time and consequently the non-payment of wages is a contravention of the Act. Throughout the relevant period the Complainant was on his notice for which he was paid in full. As such the claim is denied. The period on which the Complainant was on lay-off fell between the 21st January and 19th April 2016. The Complainant’s application for an extension of time should be rejected. The reasons advanced that is (i) the complainant’s appeal was finalised on 16th June 2016 and (ii) the interplay between the Complainant’s personal injury, unfair dismissal and debt recovery complaints created a complex situation requiring extensive legal considerations should be rejected. It is argued that the first alleged breach of the Act occurred in January 2016, some ten months prior to the lodgement of the claim. Following the Complainant’s return from sick leave on 21st January 2016 he was placed on unpaid lay-off. Correspondence between the parties indicated that the Complainant’s representative clearly stated that he believed such deductions to be unlawful. The Complainant was aware of the alleged breach some ten months prior to the lodgement of the claim and it is submitted that the reasons do not constitute “reasonable cause”.
Substantive issues
Payment of Wages
Regarding the substantive issues it is argued that the Employee Handbook provides for Lay-off and that in the event that reasonable cause is accepted to extend the period of time, the Complainant was not due payment for any lay-off period.
Unfair Dismissal
In relation to the claim of unfair dismissal, it is contended that the Complainant was made redundant following a process of examination of the financial situation which dictated that the Complainant’s role had to be subsumed into the CEO’s role. Substantial losses were being incurred in the area in which the Complainant was involved. The rationale for redundancy was discussed by the Board in September 2014 and the losses incurred in 2013 were noted as a serious financial risk. The area the Complainant was responsible for contributed significantly to the loss. The Complainant’s position was identified as redundant and the redundancy process commenced. The Complainant was issued with an “at risk” of redundancy letter on 29th September 2014. Subsequently meetings were held with the Complainant and his Trade Union representative in October 2014. The Complainant commenced a period of sick leave on 13th October 2014 and returned to the workplace in January 2016. The consultation regarding redundancy continued in early 2016 however the Complainant failed to attend meetings and following his non attendance at the meetings called for 4th and 11th April 2016 he was advised by way of letter dated 19th April 2016 of the decision to make his position redundant. An appeal was offered and the appeal hearing held on 12th May 2016. The Complainant’s position was confirmed as redundant. It is argued that this was a genuine redundancy aimed at stemming losses in the company and that it in no way constituted an unfair dismissal.
Summary of Complainant’s Case:
In addressing the preliminary issues, the Complainant’s Representative outlined submissions, summarised as follows: Application to extend the time limit for claim under Payment of Wages Act 1991 The complainant submitted his complaint for payment of wages on 25th November 2016. By this time, he was outside the permitted 6 month period by at most 4 months (for the earliest part of the lay off) and as little as 36 days (in respect of the latest part of the lay off). It is argued that ‘reasonable cause’ is relied upon to extend the time limit as the complainant had appealed the decision to make him redundant on 19th April 2016 and the outcome of the appeal was not made known to him until 16th June 2016, some two months later. The complainant was laid off on 21st January 2016 and this situation persisted until 19th April 2016. It was only at the stage following the unsuccessful outcome of his appeal, that he knew for certain that he would not be continuing his employment with the respondent. It is submitted that it was reasonable for the complainant to await the outcome before making a complaint under the Act. Further, the complexities of the situation, involving seeking advice regarding a debt collection matter (the complainant had loaned the respondent company a sum of €10,000, never returned) meant further reasonable delay. Preliminary issue – Unfair Dismissals claim Detailed legal arguments were raised, summarised as follows: The principle of duplication of litigation as an abuse of process was addressed in Henderson v Henderson and while succeeding in the High Court was overturned in the Court of Appeal. In the Court of Appeal decision in Culkin v Sligo County Council, Hogan J. held that s.101 of the Employment Equality Act does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed. In Culkin, Mr Justice Hogan stated : “this issue is fundamentally an issue of law and is governed by the interaction of the relevant statutory provisions (namely ss. 77 and 101 of the Employment Equality Act 1998) with standard legal principles such as res judicata and the rule in Henderson v Henderson”. There is no equivalent provision to section 101 of the Employment Equality Act 1998 in the Unfair Dismissals Acts. There is also no decision of the Courts which prohibits a complainant from bringing an Unfair Dismissal claim and a Personal Injuries claim arising from the same or similar set of facts. Issues of causation, foreseeability and proof of injury arise in the context of a personal injuries claim but do not arise in the context of the Unfair Dismissal claim. It is submitted that in the case law outlined, the issues arose in the course of the second set of proceedings, whereas the respondent in this instant case has raised the issue in the course of the first set of proceedings. The rule in Henderson v Henderson is essentially that you don’t get ‘two bites of the cherry’ but the respondent here is effectively trying to prevent the complainant from taking the first bite. Substantive issues Payment of Wages Act 1991 The complainant seeks payment of wages in the amount of €9,262.99. The complainant was absent from work due to work related stress from October 2014 until January 2016. On 20th January 2016, the complainant’s GP notified the respondent that the complainant was fit to return to work as and from 25th January 2016. On 21st January 2016, the respondent sent the complainant a Form RP9 laying him off with the purported reason being that no work was available. It is argued that the respondent had no automatic entitlement to lay off the complainant and as such the withholding of the complainant’s wages was a breach of the Act.
Unfair Dismissals Act 1977 A detailed submission regarding the events leading to the complainant’s dismissal was outlined, summarised as follows: It should be noted that although the respondent contends that the Haddington Road Agreement does not apply to the company, yet in October 2013, all the respondent’s staff were notified in writing by the Board of the terms of the Agreement and the consequent increase in weekly working hours from 35 to 37. This point becomes relevant in respect of an employee’s entitlement not to be made redundant and it is argued, the Respondent wants it both ways – the Agreement was deemed relevant for working hours but not relevant for employees’ job security. When, in November 2013, the Board announced they were to appoint a CEO, the complainant sought and received assurances that his position would not be affected. The new CEO was introduced to staff in April 2014, at which meeting the President of the respondent organisation made remarks about the complainant (while not naming him, it was obvious that it was the complainant he was referring to) in disparaging and negative terms. The complainant had issues with the President and a number of emails, accounts of meetings were submitted to demonstrate the ongoing difficulties the complainant had with the organisation, its President and its CEO. On 29th September 2014, the complainant was notified that his position had been “provisionally selected for redundancy”. This came as a great shock to the complainant as there had been no prior discussion or consultation. Although the letter states that “…the Company anticipates having to make redundancies in the near future.” the only employee who was made redundant was the complainant. On 10th October 2014, the complainant attended a redundancy consultation meeting, accompanied by his trade union representative. The CEO outlined that the organisation was facing a challenging financial position and that the Board had looked at all positions when considering redundancies. It is argued that the respondent made no attempt to obtain alternative or additional funding, that the complainant was, and is, of the view that he was being made redundant to free up funds to pay the new CEO’s salary. Further it is submitted, the respondent’s President had issued a letter to the complainant expressly stating that there would be no change to the complainant’s role after the appointment of the CEO. It is noted that no voluntary redundancies were sought and that the complainant’s position was specifically targeted. Following some meetings, and some deferred meetings due to problems regarding denial of representation, the complainant was served with a Redundancy Notification Form RP50 on 19th April 2016. A letter dated 19th April 2016 stated that the complainant was “… offered another role within the company.” but this was not outlined. On 21st April 2016 the respondent wrote to the complainant querying various financial transactions. It is submitted that this is a clear indication that factors other than redundancy were involved in the respondent’s decision to dismiss the complainant Case law was submitted in respect of redundancy procedures, the onus being on the employer to justify selection of employees for redundancy and reasonableness and fair selection. |
Findings and Conclusions:
Preliminary Issues: CA-00008428-001 - Payment of Wages Act 1991
The date of the receipt of this complaint was 25th November 2016. Section 41 (6) of the Workplace Relations Act 2015 provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. Section 41 (8) of the Act provides: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. In accordance with Section 41 (6), the cognitive period for consideration is from 26th May 2016. At this time, the complainant was being paid his notice pay and therefore no deductions from wages arose. I have considered the arguments submitted in relation the extension of time. I note the complainant’s argument that it was reasonable for him to await the outcome of the redundancy process before making a decision whether to submit a complaint in relation to the Payment of Wages Act 1991. However, I note that it was some 5 months later that the instant complaint was made. I note the Labour Court finding in Salesforce v Leech EDA 1615: “It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay”. The complainant had objected strongly to being laid off and had comprehensive legal advice. I do not find reasonable cause existed to prevent him from presenting his complaint within the time period. I deem the complaint to be out of time.
CA-00008428-002- Unfair Dismissals Act 1977 |
The respondent seeks a stay on proceedings due to the fact that the complainant lodged a personal injuries claim arising from the same set of facts. In addition to the fact that no such clause exists in the Unfair Dismissals Act, I am guided by the Appeal Court decision in Culkin v Sligo County Council, 2017 IECA104, where Hogan J. found inter alia that even where the facts of a case overlap, the statutory regime and matters such as burden of proof differ as do remedies, and stated that the plaintiff could not combine common law claim for personal injuries with statutory claim in one set of proceedings. I therefore find that this instant claim of Unfair Dismissal is properly before me.
CA-00008428-002 Unfair Dismissals Act 1977
Substantive issue
In relation to the substantive claim that the complainant was unfairly dismissed I find as follows:
The employee Handbook which forms part of the complainant’s contract of employment provides that if circumstances arise where redundancy is seen to be a possibility, the organisation will look at alternatives, including voluntary redundancies and short-time working.
I note in this instant case, no evidence that the respondent considered any such measures. The complainant’s contract of employment dated and signed on 17th January 2005, provides for the employee’s right to accompaniment/representation by “a fellow employee of your choice or any other person,” when facing a dismissal situation. In this instant case, I note the complainant was refused at one point a request that his brother accompany him at one of the redundancy meetings. I do not accept the respondent’s contention that the complainant was offered alternative employment. It seems to me from the evidence that he was to be considered for an alternative role. I note email dated 31 May 2016 in which the CEO stated “if he wishes to be considered, (for this role), a selection process will apply and this will include attributes such as skills, competencies, experience, length of service, attendance and other similar attributes”.
In situations of redundancy, the employer must be seen to have acted fairly and in accordance with natural justice, avoiding singling out any individual. In this instant case, I find that the respondent failed to follow their own policy of genuinely looking at alternatives, and denied the complainant representation of his choice. For these reasons, I find that he was unfairly dismissed.
Decision:
CA-00008428-001 Payment of Wages Act 1991
The complaint under the Payment of Wages Act 1991 is out of time.
CA-00008428-002 Unfair Dismissals Act 1977
The complaint under the Unfair Dismissals Act is upheld and I require the respondent to pay to the complainant the sum of €28,470.
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Dated: 1st October, 2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham