RPD193

• On 5 December 2016, the Complainant was requested to attend a disciplinary hearing for three specified reasons. Following this, he was issued with a final written warning, to remain on his file for 12 months. On 13 and 14 December 2016, the Respondent stated that staff were advised that the restaurant was going to close temporarily. On that date, a second disciplinary process was initiated against the Complainant and a second disciplinary hearing took place on 15 December 2016. On 19 December 2016, the Complainant received notice that he was being ‘laid off’ , with effect from 14 December 2016, due to issues with the building and consequent staff recruitment problems. He was advised that the company was seeking an alternative premises. On 27 December 2016, the Complainant was advised by letter that he was being dismissed for misconduct.

  The Complainant referred a number of cases to the WRC, including a claim for redundancy under the Redundancy Payments Acts 1967 to 2014. The Adjudication Officer rejected the case made under this Act by the Complainant and held that he was the subject of disciplinary sanction which arose from fair procedures; that there was no evidence to substantiate the contention that these processes were, in reality, a smokescreen for the Respondent to avoid paying statutory redundancy and that he did not serve notice on the Respondent, as per s.12 of the 1967 Act, to claim redundancy payments while on ‘lay- off'.

  The Complainant appealed this decision to the Labour Court.

  The Court heard evidence from the Complainant, the owner of the Respondent and a former Chef colleague called by the Complainant.

The Respondent’s representative raised a preliminary issue. The decision of the Adjudication Officer, issued in January 2018, used an incorrect name for the Respondent. The matter was referred to the Labour Court under the correct name but the initial notice of hearing used the incorrect name. At an initial hearing in May 2018, the matter was struck out as the named Respondent was not a legal entity. The Complainant sought a correcting order from the WRC in May 2018. This issued in June 2018 and the matter was appealed to the Court in July 2018.

The Respondent argued that the date of the corrected decision was still that of the original decision of 16 January 2018 and the appeal was not, therefore, issued within ‘42 days from the date of the decision’, as required by s.44,(3) of the Act.

The Complainant argued that the correcting order issued on 21 June 2018 and the appeal issued within 42 days of this. Alternatively, it was argued that the time-frame should be extended , as allowed by the Act for ‘exceptional circumstances’.

The Court took the view that the Act could not be intended to prevent a party from exercising their right to access to justice because of an administrative error by the WRC, over which they have no control. The appeal was submitted within 42 days of the correcting order and , as a result, the Court determined that the Complainant had a right of appeal.

In any event, s.44,(4) of the Workplace Relations Act 2015 provides that the Court may accept an appeal later than 42 days from the date of the decision under appeal if it is satisfied that the delay is ‘due to the existence of exceptional circumstances’. Parties have a right to expect that their right to be heard will not be impeded by clerical errors that are not of their doing and that are, thankfully, ‘exceptional’. Therefore, the Court is satisfied that this provision is also applicable in this case.

Complainant’ arguments

1 The Respondent is required by the terms of the Redundancy Payments Acts to show that the real reason for the termination of employment was because there was a genuine dismissal rather than a redundancy situation. s. 10, (b) of the 1971 Act states’ an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy’.

2 Furthermore, s. 21 of the 1967 Act, states that any act by an employer that operates so as to terminate an employment contract of an employee shall be treated as a termination of the contract by the employer and that, for the purposes of the Act, the employee shall be deemed to have been dismissed by reason of redundancy, under s.7(2) of the Act, if the circumstances are wholly or mainly attributable to a cessation, or intention of cessation, of the business or if the requirements of his work in his place of work have ceased or diminished or are intended to do so. In other words, in such circumstances, there is a redundancy unless proven otherwise.

3 The requirement to serve a s.12 Notice under the Act is dependent on there being a genuine ‘lay-off’ situation. This was not the case as there is no evidence for believing that the closure was not permanent. The building was being demolished and a HSE report required the fitting of a new ceiling within 8 weeks from 2 December 2016, on which work had not commenced prior to closure of the business.

4 Even if another premises could be obtained, and there is no evidence to that effect, s.7(2) of the Act applies, see above, as per the judgement in the English Court of Appeal in High Table v. Horst (1998), ICR 409, (1998) IRLR 513 in which the ruling stated ‘If an employee has worked in only one location under his contract of employment for the purpose of the employer’s business, it defies common sense to widen the extent of the place where he was so employed….’

5 s.11.1.b of the Act requires that notice of lay-off be given prior to the cessation of employment. The date of notice was 19 December 2016 stated to be ‘with effect from 14 December 2016’

6 The purported dismissal took place on 27 December 2016 after the closure of the business . S.14 of the 1967 Act requires the Respondent to prove an entitlement to dismiss if the provisions of the Act are not to be applied. The Complainant was a worker in good standing for many years who was subject to a disciplinary process in the run-up to, and after, the closure of the business. The Respondent’s own evidence states that staff were made aware of the intention to close the business before it was decided to dismiss the Complainant. It is the Complainant’s position that the entire process was a device to dismiss him without paying redundancy.

7 On the substance of the disciplinary process, the Complainant had made it clear that he believed the kitchen to be under-staffed, monitoring equipment was necessary and a necessary probe had not been purchased. Another Chef, who had left, had the central responsibility for health and safety documentation rather than the Complainant. The disciplinary meetings had taken place in the restaurant at the busiest time of year.

Respondent’s arguments

1 Throughout the majority of the Complainant’s service, he was a competent and reliable employee. After September 2016 there was a noticeable decline in his performance in relation to matters including health and safety records. This resulted in a letter of concern to the Complainant in October 2016. In November a HSE assessment of the premises identified serious issues regarding the completion of health and safety documentation. On 3 and 4 December 2016, a series of incidents involving the Complainant gave rise to a disciplinary meeting on 5 December 2016 in the course of which the Complainant did not deny the allegations put to him but rather he stated that he felt that he was over-worked and that the kitchen was under-staffed. On 9 December 2016, the Respondent issued the Complainant with a final written warning. In this warning, the Complainant was reminded of the need to follow reasonable instructions and attention was drawn to the need to comply with health and safety documentation procedures. The Complainant was advised of his right to appeal but did not do so.

2 On 13 December, the Complainant was invited to a further disciplinary meeting in relation to a further failure to complete health and safety documentation. This took place on 15 December 2016. The Complainant confirmed that he had received the instruction to complete the documentation and stated that he had made a mistake. On 27 December 2016, the Complainant was advised that, as he was in receipt of a final written warning, the breach complained of warranted his dismissal. He was given the right of appeal but did not exercise it.

3 The Complainant was afforded proper procedure and the Respondent denies any breaches. Notwithstanding this denial, there is extensive case law to show that to invalidate the outcome on the basis of procedural breaches any such breaches must not be minor and must imperil a fair hearing or a fair result. Case law was quoted to the Court to this effect.

4 The Complainant was on lay-off at the time of dismissal. This lay-off did not constitute redundancy within the meaning of the Redundancy Payments Acts. As per s.11(1) of the Acts, the Respondent was unable to provide work for the Complainant, she ‘reasonably believed’ that the cessation would not be permanent and she gave notice to the Complainant. The Respondent had taken steps to find an alternative location throughout 2016. Alternatively, it was anticipated that the restaurant could re-open with a skeleton staff after the busy Christmas period.

5 The Respondent denies the allegation that the dismissal was a device to avoid making a redundancy payment. If the Complainant wished to argue that dismissal occurred due to a defective disciplinary procedure, this should have been argued with a claim under the Unfair Dismissals Act.

6 If the Complainant wished to receive a redundancy payment while on lay-off, he was required to serve notice as per s.12 of the Acts and he did not do so. If he wished to allege that this was due to the fact that he had been dismissed, this is a claim under the Unfair Dismissals Act.

Determination

The Court heard extensive and often repetitious arguments on legal points throughout this case. However, there is really a very small range of issues for consideration on the facts of the case. The Court needs only to consider the facts of the dismissal and whether or not the Respondent was entitled to dismiss the Complainant or if, as alleged, the dismissal was a device to avoid making a redundancy payment, if the Court is satisfied that there was a lay-off within the meaning of the Redundancy Protection Acts.

The Complainant received notice of dismissal after he received notice of lay-off. Therefore, if, as argued for the Complainant, there was not a valid lay-off, it follows that the Complainant ought to have been made redundant when the business closed and, self evidently, he could not have been dismissed if, as a result of redundancy, he was no longer employed by the Respondent.

Section 11(1) of the Redundancy Payments Act provides that;

‘Where after the commencement of this Act an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and-

• 
  (a)It is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

  (b)(b) the employer gives notice to that effect prior to the cessation,

  that cessation of employment shall be regarded for the purposes of this Act as lay off’

The Court listened carefully to the evidence given by, in particular, the owner of the Respondent in this regard. She outlined the fact that she was struggling to recruit and to retain staff due to the uncertainty regarding the premises, including the resignation of the restaurant manager at a critical juncture in the lead-up to Christmas. This had led to her having to cancel major bookings of long time customers in the Christmas period, as she could not provide service, with all the consequential effects of this on the good name of the business. She, herself, had been required to help out in the bar, in addition to her normal functions due to staff shortages. There was clearly difficulty between staff, including the Complainant, in what was evidently an increasingly stressful situation, that included diminishing staff numbers in the kitchen. Furthermore, the HSE had been critical of the business and had required some investment in the premises, against a background of a pending closure of that premises. In addition, the Respondent had made a number of staff with short service redundant, indicating that their future services would not be required, though some longer term staff in the restaurant, including the Complainant, had been put on lay-off.

On the other hand, she argued that she believed that it would be easier to recruit staff post-Christmas, that she would be able to negotiate a satisfactory outcome with the HSE, that she had a lease on the premises until well into 2017 with a right to renew, that she had kept her factory open and, in any event, she could acquire another premises to re-open.

In fact, the restaurant has not re-opened and, ultimately, the factory was closed.

The Court accepts that the owner of the Respondent may well have believed that re-opening was a possibility and after many years in the business, she may have wished to do so. However, in the light of the circumstances described at the time of closure of the restaurant, the Court had to form an opinion as to whether this belief was ‘reasonable’, such that it would be reasonable to put the Complainant on lay off, as opposed to making him redundant. The belief of the owner is not sufficient. There is a test of reasonableness that the Court is required to apply to the circumstances such that a rational person would form the view that it would be reasonable to believe that the business was likely to re-open. It seems to the Court, having heard the evidence, that, given the circumstances, any such belief was not well grounded and, therefore, does not meet the test of reasonableness required in s.11(1)(a) above.

In view of this, the Court is of the view that the Complainant is entitled to be paid statutory redundancy in accordance with the Redundancy Payments Acts 1967-2014.

The Decision of the Adjudication Officer is overturned and the appeal is allowed.

Signed on behalf of the Labour Court



Tom Geraghty
MK______________________
11 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.