ADJ-00021552

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00021552

Parties:

Complaints:

Date of Adjudication Hearing:  29/07/2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)

Ca—00028171-001

Payment of Wages Act 1991

Background

The claimant commenced employment as Business Development representative with the respondent on the 2nd January 2018 and his employment ended on the 22nd March 2019. He was paid €2666 gross per month working a 40-hour week

The claimant submitted that he was owed

A              he was paid on the 24th of each month he received notice on the 22nd February,  and he should have been paid for the month of March where as he only received payment to the 22nd March where as he should have received payment until the 27^th March.

B             he was owed 76.5 hours on overtime payments

C             His health Insurance of €455.20 was not paid.

The respondent submitted that the claimant was paid his full entitlement regarding notice. It was submitted there were no provision for overtime payments in the contract of employment. The claimant entitlements were paid in full.

Findings

I find the claimant was paid by the month the contact of employment states that where “the employer will notify the employee of the date of cessation of employment and will pay the employee’s salary in respect of the balance of the 1 month notice period”

I find that there is no provision for overtime payments in the contract of employment

I find based on the evidence the claimant received his full benefits as part of his contract of employment

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find based on the evidence provide the complaint is not well founded and falls.

CA-00028171-002

Unfair Dismissal Acts 1977

The claimant commenced employment as Business Development representative with the respondent on the 2nd January 2018 and his employment ended on the 22nd March 2019. He was paid €2666 gross per month working a 40-hour week. The claimant’s employment was terminated by reason of redundancy.

The respondent submitted that due to business requirements they had to make a person redundant.

The respondent stated they applied a matrix based on 5 criteria and the claimant score was the lowest and thereby he was selected for redundancy.

The claimant submitted that he was not made aware of the selection criteria used by the respondent and he believed he was unfairly selected for redundancy. He had longer service than the other employee and he had no warnings whatsoever from the respondent on his employment.

Findings

Both parties made written and verbal submissions at the hearing.

Section 6(1) of the Unfair Dismissal Act 1977 states Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

Section 6(4)

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 a statute.

I find that the respondent has a right to make an employee redundant, however I find that it must be transparent and fair.

I find that the claimant was not made aware of the matrix that was used by the respondent and furthermore he was not afforded with any right of appeal.

I find that during the hearing that the respondent’s partner stated “that she created the following score for both sales reps in the sales team for future reference”

I find that in case No ud206/2011 the Employment Appeals tribunal stated;

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner”

I find that the selection process used by the respondent was fundamentally flawed.

I find there was no evidence presented as regards any objective and transparent selection criteria being utilised prior to deciding that the claimant be made redundant.

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.

I note that compensation is the preferred form of redress and I award the claimant €10,600

Dated:   September 12^th 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: