FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : SEAN CURTIN CONTRACTS LTD - AND - THOMAS RYAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision ADJ-00012830.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8A of the Unfair Dismissal Act 1977 to 2015. A Labour Court hearing took place on 22nd January, 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Thomas Ryan of an Adjudication Officer’s Decision under the Unfair Dismissals Act 1977 – 2015 in his claim of unfair dismissal against his former employer, Séan Curtin (Contracts) Limited. The Adjudication Officer found that the Complainant’s claim was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Thomas Ryan will be referred to as “the Complainant” and Séan Curtin (Contracts) Limited will be referred to as “the Respondent”.
The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 16thJanuary 2018.
Background
The Complainant commenced employment as a Grade 1 Scaffolder on 1stFebruary 2016. His employment as terminated on 13thNovember 2017.
The Complainant had been employed by the Respondent in the early 2000’s until 2008 when he left, initially to travel. During this time, he undertook a course and qualified as a Scaffolder Level 1. In 2014 when he was attending College, he worked on a part time basis with the Respondent for a few months. He returned to work with the Respondent in February 2016 until his termination on 13thNovember 2017.
The Respondent claimed that his employment was terminated due to a redundancy situation. The Complainant claimed that he was unfairly dismissed.
Summary of the Respondent’s Case
Mr Ian Curtin, Director/Contract Manager,on behalf of the Respondent stated that when the Complainant returned to work in February 2016, the Company had a large contract with a construction company who were building timber framed houses in a new housing scheme in Castletroy. Mr Curtain said that as the Complainant was doing very well it made the decision to put him on a new Scaffolder Level I course as his previous scaffolder’s ticket had expired. The Respondent paid the €1,000 cost involved, it paid him his wages for the eight days he was doing the course, and all his travel expenses to Portlaoise. He completed the Scaffold Inspection Course in December 2016 and he was again a Level 1 Scaffolder.
The Complainant was out sick on a number of occasions from 5thJanuary 2017 due to a number of injuries he incurred. On 11thAugust 2017 he commenced yard duties as he only had a cert for light duty work. In order to facilitate his return to work, Mr Curtin said that the Respondent decided to ease him back by reducing his hours to 9am to 3pm, (while still being paid for 39 hours per week), allocated him duties servicing fittings while sitting on a chair in the yard and keeping him away from building sites.
From 25thAugust to 1stSeptember 2017, the Respondent facilitated the Complainant and sent him on a novice fork lift course and paid him his full wages. On 14thSeptember 2017 the Complainant returned to full duties as a scaffolder after being declared fit by his doctor. Mr Curtin said that when the Complainant felt he was unable to work on sites he would contact the Company and the Respondent accommodated him by returning him to work in the yard on light duties.
On 6thNovember 2017, when the Complainant was out sick, Mr Curtain said that the Respondent suffered a major setback to its business when the construction company in Castletroy informed it, without prior notice, that it was ceasing its contract with the Respondent. This was a major loss to the Company. Mr Curtain said that its other work on a major site in Southill was coming to an end. Therefore, the only site left was for Level 2 Scaffolders at “Hanging Gardens’ in Limerick and for Trainee Scaffolders who were paid at a lower grade than the Complainant. The Complainant did not have the required training and certification for Level 2 scaffolding. As a result, the Respondent had to reduce its Level I Scaffolders with immediate effect, therefore, the Complainant was let go along with another Level I Scaffolder and given one week’s pay in lieu of notice.
Mr Curtin stated that the Complainant was selected for redundancy on the basis of the “last in first out” principle. He said that when the “Hanging Garden” project came to an end the Respondent had to also make redundant a Level 2 Scaffolder who had had four years’ service. As a result of the decline in contracts the Respondent informed the Court that it had to reduce its workforce from 14 to 6 employees.
Mr Curtin said that after the Complainant had been made redundant, the Respondent had a temporary position available for a Level I Scaffolder for a few weeks. It offered this position to the Complainant and gave him time to think about it. The Complainant was to respond to the offer by 15th November at 5pm. He did not reply within the time period and the temporary position was filled.
Mr Curtin said that he deeply regretted having to let the Complainant go, the Company had invested in him and would not have done so if it knew that it was to lose a major contract. He said that the business was a very volatile business and it did not foresee any big projects commencing for the remainder of 2018 or early 2019.
Summary of the Complainant’s Case
Mr Martin Corbett, SIPTU, on behalf of the Complainant submitted that the Complainant was unfairly dismissed when he was selected for redundancy in November 2017. He submitted that the Complainant had longer service than a number of other employee’s including Trainee Scaffolders. He also submitted that the Respondent gave no consideration to the possibility of alternative employment such as lay-off or short-time. Furthermore, he contended that the Complainant was dismissed without regard to fair procedures, or natural justice. He was dismissed in the absence of being provided with an opportunity to either contest or appeal the decision to dismiss him, to have an input into the selection process or to be represented in the dismissal process.
Mr Corbett mentioned that the Complainant was of the view that the decision to dismiss him was related to his workplace accident.
The Applicable Law
Section 7 (1) of the Acts provides: -
"An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided…...
Section 7(2) provides that:
" ...an employee who is dismissed shall be taken to be dismissed by reason of
redundancy if for one or more reasons not related to the employee concerned 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 carryon that business in the place where the employee was so employed
Conclusions of the Court
The Act deems a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. The Respondent stated that the loss of a major contract and the coming to an end of its only other substantial project necessitated a reduction in the numbers employed, this was not contested by the Complainant. However, the Complainant submitted that the Respondent failed to apply fair procedures in selecting him for redundancy.
The Court accepts that the Respondent’s position was such that it had a need to reduce staff numbers, therefore a redundancy situation arises. The Court notes that the Respondent was in contact with the Complainant’s trade union about the impending redundancies and the two Level 1 Scaffolders (including the Complainant) with the shortest service were selected for redundancy. The Complainant was a Level 1 Scaffolder and did not possess the skills, training, experience or certification to work at Level 2. At the material time, when he was being made redundant, the only work available was Level 2 work and Trainee work.
The Court cannot accept the Complainant’s contention that he should not have been made redundant as there was alternative work available which was given to a Level 1 Scaffolder with less experience. The facts are that such work only became available after the Complainant was made redundant, it was offered to him in the first instance and when he did not respond by the deadline date/time, it was then offered to the second Level 1 Scaffolders who had also been made redundant at the same time as the Complainant. That scaffolding job only lasted a short time and then the employee was let go. Since then the Respondent had had further reductions in work necessitating even more redundancies. In such circumstances the Court is satisfied that a genuine redundancy existed when the Complainant was made redundant and he was selected for redundancy by the “last in first out” principle. The Court accepts that where redundancy arises, selection on the basis of last in first out, is an acceptable method of selection. The Complainant had every opportunity to contest the selection for redundancy, he was represented by his union official and the Respondent was in contact with the union representative.
The Court is satisfied that in the circumstances pertaining at the time, where there were no foreseeable projects on the horizon, it would not have been appropriate to place the Complainant on lay-off or short-time.
In such circumstances the Court is of the view that the dismissal of the Complainant for redundancy reasons was fair and objective. Accordingly, the Court finds that the Complainant’s dismissal was not unfair within the meaning of the Act.
The Decision of the Adjudication Officer is, therefore, affirmed, the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th February 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.