ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011731
Parties:
| Complainant | Respondent |
Anonymised Parties | A Business Director | A Dairy Company |
Representatives | Lauren Tennyson B.L. instructed by Brendan O'Reilly O'REILLY SOLICITORS | Louise O'Byrne Arthur Cox |
Complaint(s):
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-00015603-001 | 06/11/2017 |
Date of Adjudication Hearing: 05/02/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant alleges that he was dismissed by way of redundancy which he contends was false as his position was not redundant and the role continued after he was dismissed. Prior to his dismissal his role became limited and he was frozen out by management. Following his dismissal, his work was taken over by a new employee who was engaged within a short time of his departure. The Respondent contends that the Complainants position was made redundant and fair procedures were followed. |
Summary of Complainant’s Case:
Response to Preliminary Point 1 A preliminary point was raised by the Respondent that there was no jurisdiction to hear the complaint and the Adjudication hearing should not proceed (see below under Respondent’s submissions.) This was contested by the Complainant on the basis that the dismissal occurred on the date that he was told that he was being made redundant on 24 July 2017. Merely because he was paid in lieu of a 3 month contractual notice period did not postpone the date of the dismissal to the end of the notice period. In lieu means “instead of” notice. If the payment was made instead of notice, the Respondent’s cannot contend that the employment continued to run for the period of notice. Response to Preliminary Point 2 The Respondent’s application for an adjournment of the WRC complaint because civil proceedings for personal injury have been instituted is misconceived. Personal Injury proceedings have been instituted but the remedy of reinstatement and/or compensation for loss of earnings can only be achieved through a WRC adjudication. Cullen v. Sligo County Council (Court of Appeal 29 March 2017) is an Equality case and while it is accepted that there is a degree of overlap between the redress available in an Equality case and a personal injury case, as this is an Unfair Dismissal case, there is no such overlap in terms of redress. A personal injury civil action is not prejudiced by an unfair dismissal complaint being heard. The right to bring an unfair dismissal case is a statutory right and is separate and distinct from the civil right to litigate for pain and suffering in a personal injuries civil action. There is a different burden of proof, there is a different remedy. The application for an adjournment on this basis is misconceived.
Substantive complaint The Respondent has an onus under the Redundancy Payments Acts 1969 as amended, to prove that it was necessary to make a redundancy – under section 7 of the 1969 Act and the selection of the Complainant was fair. In relation to the first aspect of that duty, the Respondent failed to provide any evidence as to why the Respondent made the complainant redundant. The person who took this decision did not attend the hearing and therefore whilst evidence was given as to the second limb of the duty – namely regarding the execution of the decision, the evidence as to why his position was made redundant was not provided. In this respect the obligation to comply with section 7(2) of the Redundancy payments Act 1969 (namely the evidence of the decision maker that the work that the Complainant did had ceased or the Respondent’s requirement to carry out that work had ceased or diminished) has not been met. On the basis of this, the decision of the Respondent cannot not be justified under the 1993 Unfair Dismissals Act and the complaint becomes as assessment of loss only. The Complainant confirmed that the remedy that he sought was changed from reinstatement to compensation. The evidence of the Complainant was that management wanted him out, that they had someone else in mind for his job and made it seem like a redundancy. The Complainant had been employed as a sales manager with the Respondent since April 2013. He had had responsibility for liquid milk sales in RoI and NI. A new CEO of the Respondent was appointed in 2014 and at the end of 2015 the Complainant was promoted to the title of Business Director. This meant that the Complainant was now part of the senior management team and participated in management meetings. In April 2017 the CEO took exception to the fact that the Complainant had attended a horse racing event at Punchestown with the former CEO, with whom the new CEO had a conflict. From this time onwards the Complainant believed that there was a concerted effort by the CEO to cul de sac the Complainant’s role off into one with limited function that could later be discontinued. Between May- June 2017 there was some discussion about a re-structure of roles within the company and the Complainant’s title changed to be Commercial Manager NI and another colleague took the role of Commercial Manager RoI. This was explained at the time as being a need to respond to business challenges caused by Brexit. However suddenly, he started to be ignored. He did not receive notice of senior management meetings and his role in NI sales was a much narrower role – to the point that he had very little to do. In June 2017 he found out that a meeting with a significant client in NI that he should have conducted, was dealt with by his line manager, the Commercial Director. He could not understand why he was being by-passed in this way and he felt that he was being frozen out. At a meeting on 20 June 2017 he was told by his line manager, the Commercial Director, that the CEO and COO were “out to get him.” Prior to the June 2017 staff restructure an area of responsibility that the Complainant had held was butter price fixing in RoI. On 15 July 2017 he had noticed that certain retail outlets had increased their retail prices and this presented an opportunity for the Respondent to do likewise. The Complainant knew that as the RoI market was no longer his area of responsibility however as no one else had spotted this, he felt he should inform management of this development. He received no response to this email. His view was that if management had been acting normally this input would have been regarded positively. However the reaction to this was strangely adverse and he was told that he should not have sent the email, which perplexed the Complainant. On 21 July 2017 the Complainant was told that he was required at attend a meeting about cream pricing, which he regarded as odd at the time, as these meetings were standard and usually were done over the phone. However, he attended but during the meeting the HR manager interrupted the meeting and requested that the Complainant come to her office. He did so and the HR manager then informed him that his position was being made redundant. The Complainant was very surprised and taken aback. He immediately suspected that the meeting about cream pricing had been a ruse to get him to travel to head office. At this meeting he was told that the decision was made. He was not told that there might be a possibility of being re-deployed elsewhere in the company. The HR manager told him that he could leave early that day if he wished but he returned to the meeting and afterwards he gathered his belongings and left. The Complainant says he did not have any discussions with HR after he left in July 2017 and this was because he was not led to believe that the Respondent were considering any other role for him within the business. At no stage did they communicate this to him either at the July meeting or via his trade union representative thereafter. The discussions were solely about calculating his redundancy package. It was only after he left that the Complaint realised that the “promotion” to Commercial Manager NI one month before he was dismissed was not a promotion at all, but rather was a cynical move to put him in a position that his work could easily be redistributed to someone else, which was what happened. The Commercial Director took over the role until a new marketing manager was engaged in October 2017. His job was not made redundant but it was made to look like one. After his dismissal, he retained the company car. He accepted that the car was not his and he accepted that the Respondent wrote to his solicitor on a number of occasions requesting that the car be returned. He accepts that the Respondent on a number of occasions threatened reporting the matter to the Gardai if he did not return it. In March 2018 the Respondent reported the matter to the Gardai. The Complainant then contacted the Gardai and he made an arrangement with them to return the car. However that day when he crossed the border (the Complainant lives in NI) the PSNI were alerted by the car’s registration that it had been reported as stolen. The PSNI arrested him and from March until October 2018 when he was told that no prosecution would proceed, he was under the threat of prosecution for theft. The car was returned to the Respondent immediately following the arrest and confiscation of the car by the PSNI. Loss A witness on behalf of the Complainant gave evidence that in his view he was a great worker and would be an asset for any employer. He said that would have given him work in early 2018 but for the fact that the Complainant had a criminal proceedings pending against him for car theft, and therefore he could not be Garda vetted. The Complainant accepts that he was arrested for car theft in March 2018. He says that he retained the company car after he was dismissed by the company. He accepts that a number of requests were made for him to return the car but he did not. He felt that he was treated very poorly by the Respondent. The charges in relation to theft were dropped in October 2018. He now has a driving job and is hoping that this will develop into a full-time post. He accepts that from March onwards that the potential for criminal proceedings for car theft effected his ability to mitigate his loss as potential prospective employers were not comfortable. He applied unsuccessfully for approximately 70 jobs since his dismissal. He seeks compensation based on loss of earnings from 1 October 2017 to date (approximately €53000) taking into account ad hoc earnings that he has gained in the interim)
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Summary of Respondent’s Case:
Preliminary Point 1. A preliminary point was raised that the Adjudicator had no jurisdiction to hear the complaint as the Complainant was given a 3 month notice payment. This meant that his dismissal by way of redundancy occurred on 30 September 2017, and not on 24 July as alleged by the Complainant. The complaint received by the WRC was dated 6 November 2017. He was paid until September 2017, when the redundancy decision was made, then he was paid 3 months in lieu of notice which brings the termination date up until December 2017. Therefore, at the time the WRC complaint issued in November, the Complainant’s employment was not terminated and there is no jurisdiction to entertain the matter. Preliminary Point 2 Civil proceedings for personal injury have been instituted. The Respondent contend that the defence to these civil proceedings will be prejudiced if the unfair dismissal case is allowed to proceed and on that basis the Respondent sought an adjournment of the unfair dismissal hearing until such time as the civil proceedings have concluded. Substantive Complaint At the hearing no evidence was provided by the person who decided that the Complainant would be made redundant. No reasons were provided as to why this decision was reached. Evidence was given by the HR manager that following the redundancy notice given in July, the Complainant refused to meet or discuss the possibility of him being re-deployed within the organisation. The Complainant’s trade union rep made it clear that he was not interested in any other roles within the company. Several attempts to meet with the Complainant were dismissed or ignored by him. The HR manager accepted that a new marketing manager started on 1 October 2017 but that his role was very different to the Complainant in that he concentrated on the cheese business and developing the Asian market for cheese. The Respondent’s staff structure needed to be flexible and the role the Complainant had was redundant because it could be absorbed into the responsibilities of his line manager. The Complainant’s line manager (the Commercial Director) gave evidence that he worked together with the Complainant for 4 years. He had a good working relationship with him. The decision in June 2017 to restructure the staff into NI and RoI was a decision taken by the CEO. The job of the Marketing Manager who was appointed in October 2017 is different to the Complainant’s job. His role is a lot broader. He does not manage the sales agents as the Complainant did. He does manage the large clients in NI but he also deals with bigger accounts. He was needed to expand the business and he has done that and continues to do that. The marketing manager role has a lower salary of €60,000 per annum rather than the salary of €70,000 per annum that the Complainant was on. The other work that the Complainant did, the Commercial Director now does himself. The Commercial Director accepted that he had known the person who was employed as the marketing manager prior to his appointment. He had known for a while that he was looking to move out of the position that he was in with a bakery trade with a NI company based in China. He did not have any discussion with him about starting with the Respondent until September 2017 after the Complainant had been made redundant. The Commercial Director accepted the main role of the Complainant was to look after sales to clients in NI but the structure has changed so much in the interim, the role that the Complainant had was narrow and it was initially done by the Commercial Director which in time was transferred to the new marketing manager. In relation to loss of earnings, the Respondent contends that it is not reasonable that the Complainant had not mitigated his loss since the dismissal. He is very well qualified with lots of experience and should have obtained alternative work since. The evidence of 70 job applications had not been properly made out. There is no evidence of interview or email correspondence with any prospective employer.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
At the outset I would like to commend the high standard of legal representation in this case. The representatives were well prepared and at all times were clear and direct in their dealings, with me and with each other. It was a good example of how an unfair dismissal case should be conducted. Preliminary Ruling 1 In relation to the first preliminary application, I find in favour of the Complainant. The Complainant was told that he was being made redundant in July 2017. He was placed on garden leave until 30 September 2017 during which time, he did not work. It is agreed that the redundancy took effect on 30 September 2017. The payment of 3 months salary was not agreed to in his contract, indeed the 2013 contract was silent as to a notice period in the event of a dismissal. The Respondent’s email on 6 September 2017 states that the payment of 3-months pay, was in lieu of notice. Section 1 of the 1977 Unfair Dismissal Act provides that the statutory date of dismissal is either (a) the date that would be in compliance with the provisions of the contract or (b) the date in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973. As there was nothing in the contract about a contractual notice period and the statutory notice period would have been 2 weeks, his date of dismissal was 2 weeks after 30 September 2017. His complaint issued on 6 November 2017 which was after the date of dismissal. For this reason I find that there is jurisdiction for this matter to be adjudicated upon. Preliminary Ruling 2 The decision of the Court of Appeal in Cullen v. Sligo County Council (March 2017) is not authority for the proposition that there has been an abuse of process or a duplication of claims where a WRC unfair dismissal complaint is lodged and where civil proceedings for personal injury are also being sought. The right to redress (reinstatement/reengagement or loss of earnings) under the Unfair Dismissals Act is a statutory right and exists as a separate right to damages for pain and suffering that arises in personal injury cases. This is distinct from an Equality complaint where the effects of discrimination (pain and suffering) may be compensated for by the WRC. As such I do not accept that the existence of a personal injury claim precludes the right of an employee from seeking redress under the Unfair Dismissals Act. A personal injury civil claim is not a second bite at the cherry. It is a separate bite at a different cherry, which an employee is entitled to. The Respondent’s application for an adjournment until the conclusion of the personal injury litigation is refused. Substantive Complaint This hearing proceeded over three days between April 2018 and 5 February 2019. No evidence has been put before me which shows that a redundancy situation existed. No reasons been given as to why the CEO decided that the position of the Complainant should be made redundant. The evidence available has been a description of what happened after this decision was made but not the reason why it was made. No evidence was called to support either the fact that the employer ceased the business that was carried out by the Complainant (section 7(2) a of the Redundancy Payments Act 1969) or that the requirement to carry out the Complainant’s work had ceased or diminished (section 7(2) b). Therefore I have no option but to find that the statutory onus that lies on the Respondent to show that the position was redundant, has not been discharged. Having failed to discharge this onus of proof, the complaint that an unfair dismissal occurred is well founded and the only matter to consider is what the appropriate remedy is. Redress The Complainant amended the redress being sought on the third day of hearing from reinstatement to compensation. I accept the evidence of the Complainant’s witness that the reason that he could not employ him was because of the Complainant could not pass garda vetting with the car theft criminal proceedings pending. I accept too the Complainant’s own evidence that from March 2018 onwards potential employers were reluctant to engage him until the threat of a prosecution was lifted. However, I do not accept that the Complainant had a right to retain the Company car following his dismissal. His belief that his actions were legitimate as pre-litigation positioning against the company, were misconceived and should not have been facilitated by his legal advisor. He may have been upset with how the dismissal occurred, he may have felt that the Respondent’s actions of promoting him in order to dismiss him were cynical, however while such emotions are understandable and while his judgement of their conduct was not without some basis, this does not give permission for wrong doing on his part. I find that the loss of earnings from 1 October 2017 until March 2018 are losses which arise from his unfair dismissal. Losses thereafter more properly arose due to problems associated with the threat of criminal sanction, therefore they do not arise as a result of the dismissal. I am satisfied that given the Complainant’s experience qualifications, ambition and diligence towards ongoing professional training, that had the car theft issue not arisen when it did, he would have been successful in obtaining appropriately remunerative employment that would have stemmed his ongoing loss of earnings. Taking into account all the evidence I award to the Complainant the sum of €35,000.00 as redress for what was clearly an unfair dismissal. |
Dated: 12th March, 2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Unfair dismissal – sham redundancy - preliminary applications – date of dismissal – personal injury proceedings – loss of earnings |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011731
Parties:
| Complainant | Respondent |
Parties | Mark Atkinson | Lacpatrick Dairies Ltd. |
| Complainant | Respondent |
Anonymised Parties | A Business Director | A Dairy Company |
Representatives | Lauren Tennyson B.L. instructed by Brendan O'Reilly O'REILLY SOLICITORS | Louise O'Byrne Arthur Cox |
Complaint(s):
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-00015603-001 | 06/11/2017 |
Date of Adjudication Hearing: 05/02/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant alleges that he was dismissed by way of redundancy which he contends was false as his position was not redundant and the role continued after he was dismissed. Prior to his dismissal his role became limited and he was frozen out by management. Following his dismissal, his work was taken over by a new employee who was engaged within a short time of his departure. The Respondent contends that the Complainants position was made redundant and fair procedures were followed. |
Summary of Complainant’s Case:
Response to Preliminary Point 1 A preliminary point was raised by the Respondent that there was no jurisdiction to hear the complaint and the Adjudication hearing should not proceed (see below under Respondent’s submissions.) This was contested by the Complainant on the basis that the dismissal occurred on the date that he was told that he was being made redundant on 24 July 2017. Merely because he was paid in lieu of a 3 month contractual notice period did not postpone the date of the dismissal to the end of the notice period. In lieu means “instead of” notice. If the payment was made instead of notice, the Respondent’s cannot contend that the employment continued to run for the period of notice. Response to Preliminary Point 2 The Respondent’s application for an adjournment of the WRC complaint because civil proceedings for personal injury have been instituted is misconceived. Personal Injury proceedings have been instituted but the remedy of reinstatement and/or compensation for loss of earnings can only be achieved through a WRC adjudication. Cullen v. Sligo County Council (Court of Appeal 29 March 2017) is an Equality case and while it is accepted that there is a degree of overlap between the redress available in an Equality case and a personal injury case, as this is an Unfair Dismissal case, there is no such overlap in terms of redress. A personal injury civil action is not prejudiced by an unfair dismissal complaint being heard. The right to bring an unfair dismissal case is a statutory right and is separate and distinct from the civil right to litigate for pain and suffering in a personal injuries civil action. There is a different burden of proof, there is a different remedy. The application for an adjournment on this basis is misconceived.
Substantive complaint The Respondent has an onus under the Redundancy Payments Acts 1969 as amended, to prove that it was necessary to make a redundancy – under section 7 of the 1969 Act and the selection of the Complainant was fair. In relation to the first aspect of that duty, the Respondent failed to provide any evidence as to why the Respondent made the complainant redundant. The person who took this decision did not attend the hearing and therefore whilst evidence was given as to the second limb of the duty – namely regarding the execution of the decision, the evidence as to why his position was made redundant was not provided. In this respect the obligation to comply with section 7(2) of the Redundancy payments Act 1969 (namely the evidence of the decision maker that the work that the Complainant did had ceased or the Respondent’s requirement to carry out that work had ceased or diminished) has not been met. On the basis of this, the decision of the Respondent cannot not be justified under the 1993 Unfair Dismissals Act and the complaint becomes as assessment of loss only. The Complainant confirmed that the remedy that he sought was changed from reinstatement to compensation. The evidence of the Complainant was that management wanted him out, that they had someone else in mind for his job and made it seem like a redundancy. The Complainant had been employed as a sales manager with the Respondent since April 2013. He had had responsibility for liquid milk sales in RoI and NI. A new CEO of the Respondent was appointed in 2014 and at the end of 2015 the Complainant was promoted to the title of Business Director. This meant that the Complainant was now part of the senior management team and participated in management meetings. In April 2017 the CEO took exception to the fact that the Complainant had attended a horse racing event at Punchestown with the former CEO, with whom the new CEO had a conflict. From this time onwards the Complainant believed that there was a concerted effort by the CEO to cul de sac the Complainant’s role off into one with limited function that could later be discontinued. Between May- June 2017 there was some discussion about a re-structure of roles within the company and the Complainant’s title changed to be Commercial Manager NI and another colleague took the role of Commercial Manager RoI. This was explained at the time as being a need to respond to business challenges caused by Brexit. However suddenly, he started to be ignored. He did not receive notice of senior management meetings and his role in NI sales was a much narrower role – to the point that he had very little to do. In June 2017 he found out that a meeting with a significant client in NI that he should have conducted, was dealt with by his line manager, the Commercial Director. He could not understand why he was being by-passed in this way and he felt that he was being frozen out. At a meeting on 20 June 2017 he was told by his line manager, the Commercial Director, that the CEO and COO were “out to get him.” Prior to the June 2017 staff restructure an area of responsibility that the Complainant had held was butter price fixing in RoI. On 15 July 2017 he had noticed that certain retail outlets had increased their retail prices and this presented an opportunity for the Respondent to do likewise. The Complainant knew that as the RoI market was no longer his area of responsibility however as no one else had spotted this, he felt he should inform management of this development. He received no response to this email. His view was that if management had been acting normally this input would have been regarded positively. However the reaction to this was strangely adverse and he was told that he should not have sent the email, which perplexed the Complainant. On 21 July 2017 the Complainant was told that he was required at attend a meeting about cream pricing, which he regarded as odd at the time, as these meetings were standard and usually were done over the phone. However, he attended but during the meeting the HR manager interrupted the meeting and requested that the Complainant come to her office. He did so and the HR manager then informed him that his position was being made redundant. The Complainant was very surprised and taken aback. He immediately suspected that the meeting about cream pricing had been a ruse to get him to travel to head office. At this meeting he was told that the decision was made. He was not told that there might be a possibility of being re-deployed elsewhere in the company. The HR manager told him that he could leave early that day if he wished but he returned to the meeting and afterwards he gathered his belongings and left. The Complainant says he did not have any discussions with HR after he left in July 2017 and this was because he was not led to believe that the Respondent were considering any other role for him within the business. At no stage did they communicate this to him either at the July meeting or via his trade union representative thereafter. The discussions were solely about calculating his redundancy package. It was only after he left that the Complaint realised that the “promotion” to Commercial Manager NI one month before he was dismissed was not a promotion at all, but rather was a cynical move to put him in a position that his work could easily be redistributed to someone else, which was what happened. The Commercial Director took over the role until a new marketing manager was engaged in October 2017. His job was not made redundant but it was made to look like one. After his dismissal, he retained the company car. He accepted that the car was not his and he accepted that the Respondent wrote to his solicitor on a number of occasions requesting that the car be returned. He accepts that the Respondent on a number of occasions threatened reporting the matter to the Gardai if he did not return it. In March 2018 the Respondent reported the matter to the Gardai. The Complainant then contacted the Gardai and he made an arrangement with them to return the car. However that day when he crossed the border (the Complainant lives in NI) the PSNI were alerted by the car’s registration that it had been reported as stolen. The PSNI arrested him and from March until October 2018 when he was told that no prosecution would proceed, he was under the threat of prosecution for theft. The car was returned to the Respondent immediately following the arrest and confiscation of the car by the PSNI. Loss A witness on behalf of the Complainant gave evidence that in his view he was a great worker and would be an asset for any employer. He said that would have given him work in early 2018 but for the fact that the Complainant had a criminal proceedings pending against him for car theft, and therefore he could not be Garda vetted. The Complainant accepts that he was arrested for car theft in March 2018. He says that he retained the company car after he was dismissed by the company. He accepts that a number of requests were made for him to return the car but he did not. He felt that he was treated very poorly by the Respondent. The charges in relation to theft were dropped in October 2018. He now has a driving job and is hoping that this will develop into a full-time post. He accepts that from March onwards that the potential for criminal proceedings for car theft effected his ability to mitigate his loss as potential prospective employers were not comfortable. He applied unsuccessfully for approximately 70 jobs since his dismissal. He seeks compensation based on loss of earnings from 1 October 2017 to date (approximately €53000) taking into account ad hoc earnings that he has gained in the interim)
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Summary of Respondent’s Case:
Preliminary Point 1. A preliminary point was raised that the Adjudicator had no jurisdiction to hear the complaint as the Complainant was given a 3 month notice payment. This meant that his dismissal by way of redundancy occurred on 30 September 2017, and not on 24 July as alleged by the Complainant. The complaint received by the WRC was dated 6 November 2017. He was paid until September 2017, when the redundancy decision was made, then he was paid 3 months in lieu of notice which brings the termination date up until December 2017. Therefore, at the time the WRC complaint issued in November, the Complainant’s employment was not terminated and there is no jurisdiction to entertain the matter. Preliminary Point 2 Civil proceedings for personal injury have been instituted. The Respondent contend that the defence to these civil proceedings will be prejudiced if the unfair dismissal case is allowed to proceed and on that basis the Respondent sought an adjournment of the unfair dismissal hearing until such time as the civil proceedings have concluded. Substantive Complaint At the hearing no evidence was provided by the person who decided that the Complainant would be made redundant. No reasons were provided as to why this decision was reached. Evidence was given by the HR manager that following the redundancy notice given in July, the Complainant refused to meet or discuss the possibility of him being re-deployed within the organisation. The Complainant’s trade union rep made it clear that he was not interested in any other roles within the company. Several attempts to meet with the Complainant were dismissed or ignored by him. The HR manager accepted that a new marketing manager started on 1 October 2017 but that his role was very different to the Complainant in that he concentrated on the cheese business and developing the Asian market for cheese. The Respondent’s staff structure needed to be flexible and the role the Complainant had was redundant because it could be absorbed into the responsibilities of his line manager. The Complainant’s line manager (the Commercial Director) gave evidence that he worked together with the Complainant for 4 years. He had a good working relationship with him. The decision in June 2017 to restructure the staff into NI and RoI was a decision taken by the CEO. The job of the Marketing Manager who was appointed in October 2017 is different to the Complainant’s job. His role is a lot broader. He does not manage the sales agents as the Complainant did. He does manage the large clients in NI but he also deals with bigger accounts. He was needed to expand the business and he has done that and continues to do that. The marketing manager role has a lower salary of €60,000 per annum rather than the salary of €70,000 per annum that the Complainant was on. The other work that the Complainant did, the Commercial Director now does himself. The Commercial Director accepted that he had known the person who was employed as the marketing manager prior to his appointment. He had known for a while that he was looking to move out of the position that he was in with a bakery trade with a NI company based in China. He did not have any discussion with him about starting with the Respondent until September 2017 after the Complainant had been made redundant. The Commercial Director accepted the main role of the Complainant was to look after sales to clients in NI but the structure has changed so much in the interim, the role that the Complainant had was narrow and it was initially done by the Commercial Director which in time was transferred to the new marketing manager. In relation to loss of earnings, the Respondent contends that it is not reasonable that the Complainant had not mitigated his loss since the dismissal. He is very well qualified with lots of experience and should have obtained alternative work since. The evidence of 70 job applications had not been properly made out. There is no evidence of interview or email correspondence with any prospective employer.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
At the outset I would like to commend the high standard of legal representation in this case. The representatives were well prepared and at all times were clear and direct in their dealings, with me and with each other. It was a good example of how an unfair dismissal case should be conducted. Preliminary Ruling 1 In relation to the first preliminary application, I find in favour of the Complainant. The Complainant was told that he was being made redundant in July 2017. He was placed on garden leave until 30 September 2017 during which time, he did not work. It is agreed that the redundancy took effect on 30 September 2017. The payment of 3 months salary was not agreed to in his contract, indeed the 2013 contract was silent as to a notice period in the event of a dismissal. The Respondent’s email on 6 September 2017 states that the payment of 3-months pay, was in lieu of notice. Section 1 of the 1977 Unfair Dismissal Act provides that the statutory date of dismissal is either (a) the date that would be in compliance with the provisions of the contract or (b) the date in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973. As there was nothing in the contract about a contractual notice period and the statutory notice period would have been 2 weeks, his date of dismissal was 2 weeks after 30 September 2017. His complaint issued on 6 November 2017 which was after the date of dismissal. For this reason I find that there is jurisdiction for this matter to be adjudicated upon. Preliminary Ruling 2 The decision of the Court of Appeal in Cullen v. Sligo County Council (March 2017) is not authority for the proposition that there has been an abuse of process or a duplication of claims where a WRC unfair dismissal complaint is lodged and where civil proceedings for personal injury are also being sought. The right to redress (reinstatement/reengagement or loss of earnings) under the Unfair Dismissals Act is a statutory right and exists as a separate right to damages for pain and suffering that arises in personal injury cases. This is distinct from an Equality complaint where the effects of discrimination (pain and suffering) may be compensated for by the WRC. As such I do not accept that the existence of a personal injury claim precludes the right of an employee from seeking redress under the Unfair Dismissals Act. A personal injury civil claim is not a second bite at the cherry. It is a separate bite at a different cherry, which an employee is entitled to. The Respondent’s application for an adjournment until the conclusion of the personal injury litigation is refused. Substantive Complaint This hearing proceeded over three days between April 2018 and 5 February 2019. No evidence has been put before me which shows that a redundancy situation existed. No reasons been given as to why the CEO decided that the position of the Complainant should be made redundant. The evidence available has been a description of what happened after this decision was made but not the reason why it was made. No evidence was called to support either the fact that the employer ceased the business that was carried out by the Complainant (section 7(2) a of the Redundancy Payments Act 1969) or that the requirement to carry out the Complainant’s work had ceased or diminished (section 7(2) b). Therefore I have no option but to find that the statutory onus that lies on the Respondent to show that the position was redundant, has not been discharged. Having failed to discharge this onus of proof, the complaint that an unfair dismissal occurred is well founded and the only matter to consider is what the appropriate remedy is. Redress The Complainant amended the redress being sought on the third day of hearing from reinstatement to compensation. I accept the evidence of the Complainant’s witness that the reason that he could not employ him was because of the Complainant could not pass garda vetting with the car theft criminal proceedings pending. I accept too the Complainant’s own evidence that from March 2018 onwards potential employers were reluctant to engage him until the threat of a prosecution was lifted. However, I do not accept that the Complainant had a right to retain the Company car following his dismissal. His belief that his actions were legitimate as pre-litigation positioning against the company, were misconceived and should not have been facilitated by his legal advisor. He may have been upset with how the dismissal occurred, he may have felt that the Respondent’s actions of promoting him in order to dismiss him were cynical, however while such emotions are understandable and while his judgement of their conduct was not without some basis, this does not give permission for wrong doing on his part. I find that the loss of earnings from 1 October 2017 until March 2018 are losses which arise from his unfair dismissal. Losses thereafter more properly arose due to problems associated with the threat of criminal sanction, therefore they do not arise as a result of the dismissal. I am satisfied that given the Complainant’s experience qualifications, ambition and diligence towards ongoing professional training, that had the car theft issue not arisen when it did, he would have been successful in obtaining appropriately remunerative employment that would have stemmed his ongoing loss of earnings. Taking into account all the evidence I award to the Complainant the sum of €35,000.00 as redress for what was clearly an unfair dismissal. |
Dated: 12th March, 2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Unfair dismissal – sham redundancy - preliminary applications – date of dismissal – personal injury proceedings – loss of earnings |