Complainant

Respondent

Anonymised Parties

General Operative

Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00026385-001

19/02/2019

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

CA-00026385-002

19/02/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977-2015, and has submitted that he was unfairly dismissed due to his membership of a trade union (CA- 00026385-002)

Complaint CA-00026385-001 was withdrawn at the commencement of the hearing of this matter.

The Complainant commenced employment with the Respondent on the 15th January 2018 as a general operative/site helper and was paid a weekly gross pay of €546.00 (€455.00 net) and worked 39 hours per week. The Complainant had previously worked for the Respondent from July 2016 until March 2017 in a similar role.

The Complainant submits that he was unfairly dismissed by the Respondent as he sought advice from his trade union regarding a sectoral employment order (SEO) for the general construction industry and minimum hourly pay rates.

In that regard, the Complainant had written to the HR manager on the 5th November 2018 regarding his terms and conditions of employment and specifically his rate of pay. The HR Manager replied to the Complainant on the 16th November 2018 and stated, inter alia, that the Complainant’s skill set or hard skills were very low. In the course of this reply, the Respondent Company indicated on three occasions that there was a commitment to work with the Complainant to improve his skill levels. Further, the Respondent stated that they were very disappointed that the Complainant had gone straight to the union and didn’t try to resolve these matters within the company.

The Respondent replied on the 22nd November 2018 that in relation to contacting the union, this was purely to get advice and as a member he availed of their services in order to answer a query.

On the 30th November 2018 the Complainant was informed by the sites operation manager that his employment was being terminated as his services would no longer be required however this letter did not state the reason for his services being no longer required.

The Complainant appealed the decision and a meeting took place on the 4th January 2019. It was the Complainants contention that he was unfairly dismissed because, inter alia, he had looked for a higher rate of pay and agency staff were on site since he had left.

By letter date the 4th January 2019 from the Design Manager, the Complainant was informed that the reason the company have given for his dismissal was that he did not have the skill set required for the works, on at that time, and therefore, the decision of the 30th November 2018 stands and, in his opinion, there was no proof of an unfair dismissal.

The Complainant submits that the decision to terminate the Complainants contract of employment was in breach of the Section 6(2)(a) of the Unfair Dismissals Act 1977 as amended and the categories that are automatically unfair dismissal include an employees membership or activity in this instance seeking advice from his union regarding his rate of pay in accord with SEO.

It is submitted that the decision and the rationale behind the dismissal of the Complainant is a “trojan horse” trying to create a diversion and deflect from the real reason for the Complainant being dismissed, namely his trade union membership and the involvement of his union regarding his rights and an attempt to address his workplace issues with the Respondent. The Complainant believes there is no coincidence in him seeking trade union advice, the Respondent’s disappointment with this and his ultimate dismissal. It is contended that the objective sought by the Respondent Company was punitive in nature and not legitimate.

It is submitted that the Respondent made a commitment in the context of upskilling the Complainant and have reneged on that decision rather than dealing with any issues or concerns in a meaningful way.

The Complainant relied on the cases of White -v- Betson (1992) ELR 120 and O’Riordan -v- KIllione Eyewear Ltd (1991) ELR 89 in their submissions.

This Complaint was received by the Workplace Relations Commission on the 19th February 2019.

The Complainant commenced alternative employment on the 27th February 2019.

The Respondent accepts the timeline in relation to the Complainant’s employment.

In relation to the Complainant’s contention that he was dismissed due to his Trade Union membership, the Respondent submitted that all of their site workers are members of a trade union. The Respondent pay the employees union dues throughout their employment and thus demonstrates that the Respondent encourage trade union membership.

The structure of the Respondent Company is divided into three divisions, namely, Design, Factory Manufacturing and Sites/Installation and the Complainant was in the latter division. The Complainant had previously worked for the Respondent and   family members were also employed by the Respondent.

In relation to the aforementioned comment regarding the Respondents disappointment that the Complainant did not avail of the internal grievance procedure as per clause 2 of the Complainants contract of employment. This states that

“Any grievance should be brought in the first instance to the company. If the issue remains unresolved after three working days, you may refer the matter to your trade union. Thereafter, the issue will be processed through the agreed dispute procedure”

The remarks made by the HR manager in the email of the 16th November 2018 was an expression of her disappointment that the Complainant did not go straight to her at the first instance as she had been proactively making herself available to employees since undertaking this role. In that regard, it is submitted that the HR manager goes through the company procedures with all workers, regularly visit sites and operates an open door policy.

It is submitted that although the Complainant stated he received advice from his trade union, the Respondent never received any correspondence or communication from the Complainants trade union. Furthermore, the Respondent regularly engages with the trade unions and has no issues with workers being a member of a union or seeking advice.

It is submitted that the Respondents have not replaced the Complainant since he was made redundant and the decision to terminate his employment was not influenced by him seeking advice from his trade union. The Respondents are aware of the function of the trade union in Ireland and actively encourage their workers to join the trade union.

The Respondent relied on the case of Balazs Andriszal -v- Bridge House Hotel Limited (UD9/2016) wherein the EAT held that a redundancy situation existed and despite some flaws in the procedure used, the dismissal of the Respondent was by reason a redundancy and not as a result of his trade union membership.

It is submitted that the Complainant had not established the burden of proof to show that the dismissal was wholly or mainly related to any intention to join a union. The Complainant stated he sought advice from his trade union on the 5th November 2018 and he was informed he was being made redundant on the 30th November 2018 some four weeks after receiving said advice.

The Complainant had been employed since January 2018 and was working on a new locus and the site requirements were still being determined at the end of November 2018. Ultimately, the Complainant’s position was genuinely redundant and his role was never replaced.

It is submitted that the Complainant was terminated due to a genuine redundancy situation. The Respondent decided to reduce the head count and allow skilled workers to absorb the duties of those done by a “Helper” as it transpired the site did not require a full time helper. The Respondent had considered training up the Complainant however when the HR manager discussed this with him the Complainant was disinterested.  

Accordingly, the Respondent refutes the contention that the Complainant was dismissed unfairly due to his trade union membership .

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Section 6 (2) of the 1977 Act provides:

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

Under Section 6(3) of the 1977 Act there may be a finding of unfair selection for redundancy where an employee is dismissed but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have been dismissed and either

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.”

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act   1977 which provides

“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 other substantial grounds justifying the dismissal”

Under Section 6(4) redundancy is a substantial ground and once the redundancy is established the employer has discharged the onus. However, an employee may meet a redundancy defence by claiming the unfair selection under Section 6 (3).

In Williams –v- Comp Air (1982) 1 ICR 156, Browne-Wilkinson J in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act:

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

In Boucher –v- Irish Productivity Centre (1994) ELR 2005, this was an illustration of an unfair selection process. In this case, no agreement was reached as to the method of selection for redundancy. The selection process was carried out by without any consultation or interviews In describing this selection procedure as unfair and holding that the claimants has been unfairly dismissed the Employment Appeals Tribunal emphasized that those in the group likely to be dismissed should be made aware that such assessment is being made and they should be given an opportunity to give their views which should be considered.

InMulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases that may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“ It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

“The comment on the nature of redundancy made in St. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:-

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned'.

Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work'. More work or less work of the same kind does not mean ‘other work' and is only quantitative change.”

Justice Charleton also remarks that “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.

He also comments

“As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.

As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.

Further, with regard to the investigatory and disciplinary process employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Act provides:

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.

S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, provides that:-

• The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

It is clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of fair procedures which lays down that certain specific matters must be complied with. The protection to be aaaarchid to a person whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirement of fair procedures that cannot be dispensed with regardless of the particular circumstances.

One element of fair procedures, the right to representation at a disciplinary hearing, was subject to a Labour Court Recommendation, LCR18364.

Regarding the Code of Practice on Grievance and Disciplinary Procedure contained in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, S. I. 146 of 2000, as referred to above, the Court found:

“It is clear from the Code of Practice as a whole that its object is to provide for good employment practice in the internal processing of grievance and disciplinary issues. To that end it provides that procedures must be fair and in conformity with the principles of natural justice. The right to representation is obligated by the requirements of procedural fairness and is clearly for the benefit of the employee. It follows that it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice. A contrary conclusion would not accord with the principles of natural justice nor with accepted standards of objective fairness. Accordingly, it is the opinion of the Court that a refusal to allow an employee representation by a registered trade union in the processing of a disciplinary issue constitutes a breach of the Code of Practice.”

In the circumstances of this case, I accept on behalf of the Respondent Company that from a business and operational point of view there was credible evidence of a genuine redundancy. However, this does not absolve the Respondent from affording the Complainant fair procedures in relation to consultations or exploring alternatives.

That being the case and in light of the above, I find that the in the lead up to his dismissal the Complainant did not avail of the appropriate grievance procedures per his contract of employment. In the Course of the hearing of this matter, there was no compelling evidence to demonstrate that the dismissal, “trojan horse” or otherwise, was due to the Complainant seeking advice from or his membership of a trade union. Further, it is noted that the Respondent did not refuse to allow the Complainant representation by a trade union in the process of a disciplinary issue and it is accepted that the Respondent actively encourages its members to join the appropriate trade union.

Therefore I find the dismissal was not unfair, that a genuine redundancy situation did exist and the Respondent acted reasonably and applied fair procedures in taking the decision to dismiss the Complainant.

I find that the Complaint (CA-000265385) made pursuant to Section 8 of the Unfair Dismissals Act, 1977-2015, is not well founded and therefore fails.

Unfair Dismissal