Complainant

Respondent

Anonymised Parties

Security Guard

Security Service

Representatives

Carley and Connellan.

Warren Parkes Solicitors .

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-00018076-001

22/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018076-002

22/03/2018

The complainant commenced employment with the previous employer on 1/1/2000 as a security guard. Following a transfer of undertakings, he transferred into the current employer on 14 September 2017. He worked 48 hours a week. His gross weekly salary was €702.

He claims that he unfairly was dismissed on 8/10/2017.

He states that he did not receive his statutory paid leave for 2017.

He submitted his complaints to the WRC on 22/3/2108.

CA-00018076-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant contends that he was unfairly dismissed under the guise of a redundancy.

The complainant worked since 2001 with the respondent. A transfer of undertakings took place on the 30 August 2017. Shortly after that he was advised by the respondent General Manager that there would be no additional 8 hours pay for bank holidays irrespective of whether they worked or not as had been the custom to date. The respondent told the complainant that he could not guarantee work. The General Manager told him to take it or leave it. The General Manager advised him that he could accept the respondent’s terms or take redundancy. It was clear to the complainant that he was not welcome; the respondent did not wish to retain him. The statutory redundancy payment rates were what was offered to him. He did not believe it to be a genuine redundancy.

His employment ended on the 8 October 2017.

The complainant argues that the total absence of a process surrounding the purported redundancy demonstrates that it was not a genuine redundancy. No RP 50 was completed as required by the Redundancy Payments Act, 1967 as amended.

It was not a genuine redundancy but an unfair dismissal.

There are no documents detailing the severance arrangement or agreement. There is no evidence to support the contention that it was an agreed severance.

The respondent General Manager did not challenge the email sent to him on 21 September on behalf of the complainant, by a fellow employee and fellow complainant stating that he would accept the redundancy.

Loss

His net loss is €6,500.

He went on disability benefit a week after his employment was terminated.

CA-00018076-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

He was not paid for the two weeks owing to him on the termination of his contract.

He only took five days leave for the year. When he asked the respondent for payment for his leave he was told that it was the transferor’s job to have paid him for the leave.

CA-00018076-001.

The dismissal is contested. The respondent denies that it was either a redundancy or an unfair dismissal. It was an agreed severance arrangement.

The respondent Operations Manager gave evidence.

The complainant’s union wrote to the respondent seeking assurances concerning continuity of conditions of employment on 28 August 2017. The respondent met the complainant with his union representative in September. He assured them that there would be no changes in their work practices. The respondent did not consider the upgrading of the CCTV system to a new high definition system to be a change. Training was planned for the complainant, but he left before it could be provided. A new clocking in system was developed. It was an updating rather than a change. The respondent’s client to whom the complainant was assigned wanted this level of accountability. The complainant was looking for extra hours in the future. The general Manager spoke to the client to whom the complainant was assigned, and they were advised that extra hours would be considered. The respondent states that if the complainant agreed to the new practices concerning CCTV and clocking in, work would be guaranteed.

The respondent advised them that if there were any issues he would be happy to offer them a severance arrangement. or, if he preferred, he could remain on with the respondent.

A colleague of the complainant emailed the respondent General Manager accepting the offer of voluntary severance on the 21 September. It is correct that the payments made to the complainant were based on the statutory redundancy payments. The only basis for using the term redundancy is that the method of calculation is the same as that used in deciding on statutory payments to redundancy. An RP 60 was not issued because it was not relevant. The respondent always issues an RP 60 in a redundancy situation. The respondent denies that he said take it or leave it.

Loss.

The respondent states that the complainant made no efforts to mitigate his loss.

CA-00018076-002

The complainant was advised to contact payroll concerning his leave.

CA-00018076-001.

As this complaint is submitted under the Unfair Dismissals Act 1977, the onus is on the respondent to disprove that the dismissal was not unfair.

I am required to decide if this is

an unfair dismissal executed under the guise of a bogus redundancy

or

if it was an agreed termination of the employment relationship.

The respondent maintains that it was a consensual severance agreement.

It is not disputed that the job remained on offer to the complainant even if the offer came with encouragement to accept a redundancy or a severance agreement. It is accepted that his employment ended with the respondent on 8/10/17. It is accepted that he received a sum of money matching the sum which the Redundancy Payments Acts, 1967 would have awarded him based on his service. But there is a conflict of evidence after that.

Was there a genuine redundancy?

For a dismissal to attract the protection of section 6(4)(c) of the 1977 Act, Section 7(2) of the Redundancy Payments Act 1967, as amended, must apply. It states

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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, or 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”

The respondent does not, however, draw down the protection of redundancy to defend the complaint against him. He states it was a severance agreement. However, that said it does not deal with the difficulty that there are no minutes of meetings, correspondence between the parties to state that it was an agreed severance.

As against that and on the basis of the evidence, I find that the job was continuing, was available to the complainant and not so changed as to justify a termination of employment based on redundancy. Because the termination of the complainant’s employment failed to meet the requirements set out in section 7 (2) of the Redundancy Payments Act, 1967, I do not find that it was a genuine redundancy. A qualifying employee must be given a Certificate of Redundancy, Form RP50 when being made redundant.

As a genuine redundancy did not exist, was it then a case of unfair selection for redundancy?

A severance agreement which is alleged to have operated here does not disentitle the complainant from making a complaint that he was unfairly dismissed. Section 13 of the Act of 1977 states

” a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act”. He states that it was a consensual severance arrangement.

The onus is on the respondent to disprove the charge of unfair dismissal. Given that there is an outright absence of documents setting out the chain of events leading to the termination- a very problematic aspect of this complaint- I must look at the evidence concerning the conduct of the negotiations and the conduct of the parties.

What do the course of negotiations and the conduct of the parties reveal?

There was no mention of redundancy or severance prior to the transfer; it only arose 3 weeks after the transfer and in the context of discussions about conditions of employment. I accept that the complainant’s union representative sought the meeting which occurred in the first fortnight of September. This started out as a quest for confirmation concerning continuity of conditions of employment. Concerns were raised by the complainant about retention of payment for 8 extra hours on public holidays. This meeting turned into an offer of a severance package, an offer put forward by the respondent. This is not disputed. There is no evidence to suggest that the respondent did other than to encourage this course of events.

The respondent set out the financial offer based on the statutory redundancy payments. Using the same method of calculation employed in determining the amount to which one is entitled in a redundancy situation while possibly indicative, does not necessarily amount to proof that he was unfairly selected for redundancy when put alongside the conduct of the parties. I note the email which the complainant’s colleague sent to the respondent on 21 September accepting the redundancy. I note that the respondent did not disabuse him of his belief that it was a redundancy arrangement.

The complainant did not dispute that the respondent had offered the job to him. It appears that the complainant wanted out due to what he saw as the respondent’s desire to have him gone. He accepted the sum of money calculated on the basis of a redundancy entitlement.

Putting the option of a severance arrangement or promoting it but also notifying the complainant of the option to stay on does not a dismissal make. The option of remaining was on offer to him.

The complainant in this case states that he was left with no option but to agree to the terms of the respondent’s redundancy offer given the respondent’s desire to see him go and what he sees as the altered conditions and that this constituted an unfair dismissal based on unfair selection for redundancy. I do not accept that the changes in the work practices such as more frequent clocking in arrangements, more extensive CCTV monitoring on site were of a nature to leave the complainant with no option but to seek or take redundancy. The matter of a reduction in the pay for public holidays – a legitimate concern and a matter in doubt- was an issue which a complaint under TUPE could have resolved. The respondent accepted that a transfer occurred. More importantly no letter of dismissal or statement of dismissal on the part of the respondent nor letter of resignation by the complainant was submitted in evidence.

For the reasons stated above, I do not accept that he was dismissed on the basis of an unfair selection for redundancy.

Definition of dismissal

Section 1 (a) of the 1977 Act states

“The termination by the employer of the employee’s contract of employment by the employer whether prior notice of the termination was or was not given to the employee”

b) or the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

Based on the evidence, I find that the job remained open, that the complainant was not unfairly selected for redundancy. No evidence of any letter of resignation by the complainant nor letter of termination nor verbal statemen by the respondent which meets the definition of a dismissal as set out in section 1 of the Act was submitted in evidence.

The respondent asked that it be accepted that it was an agreed severance arrangement. On the other hand, the complainant asks me to accept that the absence of any written agreement is proof that no consensual severance agreement existed and that he was coerced into accepting an agreement. In the absence of an actual agreement, it is the evidence and the conduct of the parties which I must look at. Previous decisions have addressed the matter of whether a severance agreement acts as a bulwark against a claim of unfair dismissal, for example - Fitzgerald v Pat the Baker, (1999), E.L.R.227 or they have addressed a breach of another statutory right in the case of Sunday World v Stephen Kinsella and Luke Bradley, FTC /06/03 No 066. The behaviour of those employers, intent on terminating the contract of employment in those cases via severance agreement has been in contrast to the actions of the respondent in the instant case. Those employers sought to protect themselves from later claims by setting out in a written agreement what was on offer and what was being waived. Surely a respondent intent on coercing an employee into a severance agreement or in any doubt about the consensual nature or durability of the severance agreement or who had any doubts about the commitment of the employee to honour its terms would have secured a written agreement enumerating what was on offer and what was being waived. Contrary to the complainant’s assertion is it not equally or more probable that the total absence of any documents is indicative of a respondent who was confident of and believed in its consensual nature. Would not a respondent, using a severance agreement as a ruse to get rid of an employee or faced with opposition to or ambivalence about the severance agreement have secured it by an agreement. During the process leading to the termination, the complainant had the advice of a trade union official.

I find that the complainant was offered a package, labelled redundancy, and attracting the same amount as that payable in a redundancy situation. There were no additional monies. That it may have been a poor bargain is not evidence of an actual dismissal. There is a lack of evidence of an actual dismissal. Encouragement is different to duress.

I find that there was a loose, undocumented agreement in which the complainant left the employment in return for a sum of money.

For all of the reasons set out above I do not find that the complainant was dismissed.

CA-00018076-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

Section 19 of the Act sets out the entitlement in respect of annual leave. The complainant states that he received 5 days leave. I find that he is owed 5 days leave. I require the respondent to pay him the sum of €702 subject to all lawful deductions.

CA-00018076-001.

I do not find this complaint to be well founded.

2. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €702 subject to all lawful deductions.

Unfair selection for redundancy; severance agreement