Complainant

Respondent

Anonymised Parties

Senior customer service representative

Customer call centre service

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-00028192-001

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00028192-002

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00028192-003

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00028192-004

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028192-005

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028192-006

06/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028469-001

07/05/2019

The complainant contends that he was unfairly dismissed on the 1 May 2019. He further claims that the respondent breached the provisions of both the Organisation of Working Time Act, 1997 and the European Communities (Protection of Employment) Regulations 2000.

The complainant commenced employment with the respondent on 3rd November 2015 as a customer service representative. He worked 40 hours per week, over 4 days per week (Monday to Sunday). He earns €2298 gross a month.

He submitted his 7 complaints to the WRC on 6 May 2019.

CA-00028192-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant submits that the manner in which his redundancy was executed amounts to an unfair dismissal on the 1 May 2019.

On 25th March 2019, the respondent announced that their UK client was withdrawing its licence from the UK/Ireland market and that the complainant’s role plus 5 other customer service representatives’ roles were to become redundant. The Respondent advised the employees in question (6 in total) that they intended to carry out the redundancies as soon as possible, specifically within a two-week timeframe. The affected staff members would be expected to continue their duties during this time. The respondent wrote that a follow-on meeting would be conducted on 29th March 2019 to discuss "if there are any other options other than redundancy available" and that he should direct queries to Ms C, the HR Manager. The respondent’s email to the complainant of the 28 March stated that it is not a collective redundancy. The complainant reverted back once again to Ms. C and advised her that the redundancy process which the company intended on undertaking was defined as a collective redundancy for the purposes of the Protection of Employment Acts 1977-2014, and thus there was legal obligations- which needed to   afford to the affected individuals .Ms C refused to comment on the process any further and consequently, the complainant felt he had no other option but to attend the scheduled meeting on 29th March 2019. He was refused his right to have his preferred representative attend. Under duress, the complainant brought a colleague into the meeting with him to ensure there would be a witness. This meeting lasted approximately 15 minutes and the complainant was informed within seconds of the meeting commencing that he was going to be made redundant. The respondent’s representatives then advised the Claimant that his witness would need to leave the meeting if the Claimant wanted to be advised of his redundancy package, unless both parties signed a non-disclosure agreement. He was left with no representation at all. No consultation took place during that meeting, rather the complainant was merely advised of the redundancy sum payable. The complainant was not permitted to address his outstanding concerns or given the opportunity to put forward any other alternatives he might have had to his role becoming redundant. However, the HR Manager advised that they would honour the 30-day consultation period (which had previously been refused). Thereafter, he was placed on a period of "garden leave" for the remainder of the 30 days (although this was not provided for in his contract of employment), and which conflicted with the company’s initial request to continue working as normal throughout the redundancy process. He was required to return his keys/fob and to exit the building immediately.

After this meeting, the complainant received an invite to a "final redundancy consultation" meeting on 30th April 2019. The c complainant asked for this meeting to be rescheduled upon his return to the country on 2nd May 2019, as would be on a period of pre- approved annual leave. The HR manager refused to reschedule the meeting. The HR manager offered a phone call on this date but due to prior commitments on this particular date he advised that he would be unable to accept a phone-call whilst abroad, nor did he think a phone-call was an appropriate way of advising that he was to be dismissed from his employment (and this would also mean he would be without any representation once again). The HR Manager proceeded to call him on 30th April 2019 while on leave. She confirmed that his employment would terminate effective 1st May. Her letter dated 30th April 2019 refers to a “final individual consultation meeting” with the Claimant on 30th April 2019. However, this meeting never actually occurred.

Since then, the Claimant has been actively seeking employment, although unfortunately he is yet to secure a new role. He submitted copies of job applications.

Legal Submission

The complainant points to the obligation found in section 5 of the revised Act of 1993 requiring employers to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. The Unfair Dismissals Act, 1977 - 2015 provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of all dismissals. The complainant refers to a number of decisions which while finding that a redundancy did exist nevertheless found the conduct of the employer in effecting the dismissal amounted to an unfair dismissal. In Tolerance Technologies Ltd v Joe Foran (UDD1638/2016), the Labour Court confirmed that, even though the position of the employee was redundant, the company put a decision rather than a proposal to the complainant the conduct of the Employer in relation to the dismissal cannot be held to have been reasonable. Most notably, the respondent was not consulted adequately, and he was not afforded representation. Inadequate consultation processes were addressed in Ian Stewart v Post Publications Ltd (UD302/2014); A Hotel Manager v A Hotel and Spa Resort - ADJ-00015257; A Production Manager V A Printing Company (ADJ-00009028). In the case of Employee v Employer (UD206/2011),the tribunal found “There was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial.”

The complainant submits that the respondent had no intention of genuinely consulting with the complainant or affording the affected employees their right to appropriate representation or to put forward any suitable alternatives to the proposed redundancy. The minimum of consultation occurred in this instance and the respondent refused to reschedule their meeting for the 30th April 2019 when the complainant was on a period of pre-approved annual leave.

The Company failed to inform the complainant that he had a right to appeal the decision to make him redundant. It has been accepted by the Workplace Relations Commission in A Storeman V A Construction Supplies Company ADJ-00001516; Tolerance Technologies Ltd v Joe Foran (UDD1638/2016); Employee v Employer (UD57/2009) that it is the company who must advise an employee of this procedural right.

Conclusion

The complainant submits that taking his evidence and legal submission into consideration, it is evident that he was unfairly dismissed from his employment by way of a predetermined redundancy. The complainant was not afforded fair procedures or his rights under natural justice.

CA-00028192-002.Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The employer did not facilitate an election procedure for an employee representative to be appointed in the organisation, and therefore did not "consult" with anyone. The complainant’s representative was not properly consulted in relation to a proposed collective redundancy which affected him. Consequently, the company did not allow the complainant, and his fellow affected work colleagues, enter into consultations with a view to agreement with their representatives nor were they provided with the required information in relation to the collective redundancy process.

He was also then refused his own preferred choice of representation at every stage of the process. The complainant relies on the decision of A General Operative v A Commercial Plastic Wrapping Company (ADJ-00009995) where the respondent’s failure to facilitate the employee led to a finding that that respondent had breached section 9 and 10 of the Act of 1977.The initial failure of the employer to honour the 30 day consultation period was addressed in Linda Andreucetti v Sparkglade Limited (UD29/2012), where the Tribunal stated

“A subsequent attempt was made to recognise the need for a consultative period by letter… but this cannot be the case given the fact that the claimant was clearly targeted for redundancy from the start… The claimant was therefore never allowed the opportunity to argue her corner and given the fact that the claimant was told that she was being made redundant one day after the general announcement was made the Tribunal accepts that this claimant was fighting a rear-guard action.”

Similarly, in the instant case and days after the initial group announcement, the company then informed the complainant of the 30-day consultation period.

In cross examination the complainant advised that he was exploring an external representative though had not named an individual.

CA-00028192-003 Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The respondent failed to provide the complainant’s representative with the reason for the redundancy, the selection criteria for employees affected , the method of calculating any redundancy payment and the consultation period. The complainant was refused his own preferred choice of representation throughout the process.

CA-00028192-004. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

The respondent did not follow the steps required in a collective redundancy process and supply the Minister with a copy of the prescribed information in writing.

CA-00028192-005. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant should have received payment in lieu of the public holiday which fell on 6 May and 3 June as required by Section 23 of the Organisation of Working Time Act, 1997. It was not his choice to receive payment in lieu of notice.

CA-00028192-006.Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant submits that the period 1- 31 May should be reckoned for annual leave entitlements. It was not his choice to receive payment in lieu of notice for this month. His contractual notice provisions should have meant that his last date of employment with the respondent would be 1st June 2019. Section 7 of the Minimum Notice and Terms of Employment 1973 stipulates that: “In any case where an employee accepts payment in lieu of notice, the date of termination of that person's employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.”

CA-00028469-001.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was not given compensation for working on a Sunday. His contract does not specify which element of his pay is attributable to working on Sundays. Throughout the complainant’s employment, his schedule changed between working every second or third Sunday, and he did not receive appropriate compensation for same, nor was such included in the Claimant’s contract of employment.

In A Bar Assistant V A Licenced Premises (ADJ-00003025), the Adjudicator referred tothe Labour Court’s decision in Duesbury Limited v Frost (DWT3/2010) which advised that: "some element of the employee's pay must be specifically referable to the obligation to work on Sunday".

CA-00028192-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

At the outset of the hearing the respondent asked that their objection to the written submission of the complainant, presented at the hearing, be noted and that they be given an opportunity to submit written supplemental submissions if necessary, based on the until then unsighted submission and legal authorities contained therein. Further submissions were received from the respondent on 24 September and were exchanged with the complainant’s representative.

The respondent denies that the complainant was unfairly dismissed.

The respondent trades as an online gaming business. It is registered in Dublin and operates a call centre from its Dublin offices providing customer call centre services exclusively for its business to business customers licensed in the online gaming sector.

The respondent was advised on the 25 March 2019 that owing to losses sustained by their sole UK customer, a commercial decision was made by that customer, A, to withdraw from the UK market and to surrender its licence. The complainant and the remaining 5 customer service employees employed in Dublin were dedicated to the UK market which was no longer available to the respondent. The respondent had to make redundancies. Nine UK employees tasked with servicing this customer were also made redundant. There were 11 redundancies in Manila and the Philippines. Furthermore, there was a recruitment freeze imposed in Manila and the Isle of Man.

All of these customer service roles which supported the UK market ceased to exist once the company's client ceased providing services to the UK market. The only alternative roles available within the company were to support the company's focus on the Brazilian market.

The respondent maintains that any imperfections in the process do not render the dismissal to be unfair.

The respondent argues that there was extensive consultation with the complainant. Mr F, Chief Executive Officer, Mr. P, then Chief Operating Officer and now Senior Trading Manager and Mr. G, Office Manager, met with the Irish and Portuguese staff on 25 March to notify them of customer A’s decision to withdraw from the UK market. The respondent then followed up with a written notification to staff in the following terms:

"Consequently, we are reviewing all effected staff overheads within our company who support the UK market. We anticipate it will be necessary to make redundancies, therefore we regret to inform your position is at risk"

There was then a group and individual consultation meeting with the complainant on 29 March 2019.He was advised that due to the sensitive nature of the roles which were customer facing, all customer service agents would be placed on garden leave. Nobody present at the meeting of the 29 and this includes the complainant objected to this decision. The complainant was notified of a final consultation meeting to be held on 30 April, where the Respondent would confirm if his role would be made redundant and any queries should be directed to Ms C HR Manager.

Regarding the respondent’s reference to skills and criteria for selection of persons for redundancy, the HR manager stated in evidence   that the company initially thought there might be a requirement for 1-2 customer service agents for a few months but by 27 March it was evident that there was no such requirement.

The complainant did not make himself available to attend the final consultation meeting on 30 April 2019 unlike his fellow five employees. One of the five was also on leave, similar to the complainant, however, he agreed to make himself available by telephone. The complainant did not.

It is accepted that the respondent had an obligation to consider alternative roles. Ms C, HR Manager gave evidence that of the 16 out of 27 employees remaining in the Dublin office the only employees who escaped redundancy were the Manager, Assistant manager and 14 Portuguese speaking customer agents. The complainant accepts that he is not fluent in Portuguese. The complainant did not make any suggestions to the respondent in relation to alternative roles.

The respondent submits that the termination of the Complainant's employment was fair and falls within Section 6(4)(c) of the Unfair Dismissals Acts 1977 - 2015.

The respondent relies on Section 6(4)(c) of the Unfair Dismissals Acts 1977-2015 which exempts redundancy as a ground for an unfair dismissal.

The respondent had no choice other than to implement redundancies following the decision by its only UK market client, to surrender its UK licence after suffering business losses. The Respondent relies on section 7(2)(b) of the Redundancy Payments Acts 1967-2014.

“For the purposes of subsection (1), 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 -

the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish".

Furthermore, the Respondent decided to continue the business with fewer employees as provided for in section7 (2)(c) of the Redundancy Payments Acts.

The Complainant was not replaced in his role. All the UK market Customer Service team were made redundant. There was no other reason for the Complainant's dismissal. This was therefore a genuine redundancy situation.

Case Law.

In response to the case law submitted on behalf of the complainant, the representative’s written submissions, submitted on September 24, refer the Adjudicator to the decision of the Employment Appeals Tribunal in Nigrell –v- Graham UD 690 (2013). In its determination the Tribunal held that there was a genuine redundancy and stated as follows:

“the respondent’s complaints related to a failing on the employer’s part in affording fair procedures.

The Tribunal was not persuaded by the respondent’s arguments that in all instances an employer must (a) afford the affected employee an opportunity to respond to the proposed redundancy or

(b) facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or

(c) have a right to appeal the decision to make the employee redundant. Such may be good and prudent practice and is probably found in larger enterprises”. The Tribunalstatedthat they were

“not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal. For that reason, the Tribunal disagrees with the findings of the Rights Commissioner and determines that the employee was lawfully dismissed by reason of redundancy.”

This decision of the Employment Appeals Tribunal was followed by the Workplace Relations Commission in a decision in the case of A Course Superintendent –v- A Golf Club ADJ-00017951 (2019)

It is not contended by the complainant that his dismissal was for any reason other than redundancy.

CA-00028192-002.Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The respondent complied with their obligations under the Protection of Employment Acts 1977-2007 in relation to employee representation and consultation.

As there were no trade union or staff associations representing the employees, the complainant was advised to bring a colleague to the individual meetings. None of the six employees affected including the complainant sought collective representation. The respondent engaged fully with and consulted with employees and complied with the 30-day obligation contained in the Protection of Employment Act, 1977.

Ms.C, gave evidence that she initially understood that UK law would govern the redundancy process but upon learning that the operative law was Irish extended the consultation period to 30 days.

The complainant had an employee representative with him at the one to one meeting on 29 March 2019. He was therefore facilitated with, and not denied, representation. The complainant was provided with all information pertaining to the redundancy.

The respondent opened the correspondence between the complainant and Ms. C. His questions regarding the redundancy process were addressed by Ms C.

Ms C told the hearing that she advised the complainant that they needed customer service agents with fluency in the Portuguese language so as to service their Brazilian market. The complainant did not make any comment about this at the meeting of the 29 March. Ms. C asked the complainant to submit alternative roles. None were submitted.

The complainant did not indicate at the meeting of the 29 March that he was unable to attend the meeting scheduled for 30 April. Everything was set to conclude the process on 30 April and the respondent regrettably was unable to change the date when requested to do so on 2 April by the complainant. The respondent did offer the complainant a telephone call option instead of a meeting, however, this was refused by the complainant. The complainant failed to attend the meeting on 30 April 2019. The respondent attempted to call him four times and left a voicemail. A letter confirming the redundancy was sent to the Complainant on 30 April 2019.

CA-00028192-003 Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

Alleged breach of Section 10 of the revised Act of 1977

Ms. C, HR manager stated to the hearing that she and Mr P met the complainant for an hour on the 29 March. She invited questions. She explained to the staff the basis for the likely redundancies; the level of business did not warrant the retention of the 6 customer service representatives. Staff were also advised that there would be no selection criteria, as all roles were affected.

The respondent engaged fully with and consulted with employees and advised complainant of and complied with the 30-day obligation contained in the Protection of Employment Act, 1977.

The respondent gave him details of the redundancy package.

Ms. C stated that it was not ideal to phone an employee while on annual leave to tell them their employment was ended, but they agreed a time line with all staff

CA-00028192-004 Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

The respondent accepts that it did not send the Minister the prescribed information. The respondent mistakenly sent the required notification to the WRC rather than to the Minister. This had no impact on the complainant. The WRC neither acknowledged the letter nor responded to Ms C to notify her that her letter had been sent in error and should have been sent to the Department.

It is submitted that the Claimant should not therefore be awarded any compensation under the European Communities (Protection of Employment) Regulations,2000.

CA-00028192-005. Complaint under section 27 of the Organisation of Working Time Act, 1997

The respondent submits that all correct holiday and public holiday payments were paid. The respondent submitted evidence demonstrating that the complainant received payment in lieu of the public holiday which fell on 6th May 2019. The Claimant was not entitled to payment for the public holiday of 3 June 2019. In this regard, the Respondent refers to Section 23 of the Organisation of Working Time Act 1997 which states as follows:

“Where-

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the four weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under Section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.”

The complainant did not work for the respondent during the four weeks preceding the week ending before the June 2019 public holiday and accordingly had no entitlement to be paid for that public holiday.

CA-00028192-006. Complaint under section 27 of the Organisation of Working Time Act, 1997

The respondent submits that though not obliged to do so, he gave the complainant the benefit of May for purposes of annual leave. A copy of a payslip demonstrating same was submitted.

CA-00028469-001.Complaint under section 27 of the Organisation of Working Time Act, 1997

In relation to the complainant's claim in respect of Sunday premium, the complainant's rate of pay incorporated his being required to work on Sundays.

The respondent submits that the complainant was correctly remunerated in accordance with his contract of employment which states that he is required to work “each week from Monday to Sunday inclusive including nights”.

Without prejudice to the foregoing, the complainant’ s claims under the 1997 Act are limited by section 41 of the Workplace Relations Act 2015 to the period of six months ending on the date on which he lodged his claims - 7 May 2019.

For the reasons set out above, the Adjudication Officer is requested to reject all of theclaims brought by the complainant.

CA-00028192-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Applicable Law.

Section 6 (4) (c) of the Unfair Dismissal of Act, 1977, provides that a dismissal is not an unfair dismissal if it results wholly or mainly from the redundancy of the employee. However, this is qualified by Section 5 of the revised Act which, inter alia, stipulates that:

“in determining if a dismissal is an unfair dismissal, regard may be had… to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

These provisions require that I examine three matters:

Did a genuine redundancy exist?

Was there a fair selection?

Did the employer act reasonably?

Did a genuine redundancy exist?

The complainant did not dispute that a redundancy situation obtained -customer A, the source of their employment ceased to trade. It is accepted that neither the complainant or the 5 fellow Irish customer service agents were replaced.

I accept on the basis of the evidence that it was not possible to provide an alternative role for the complainant. I accept that the circumstances facing the respondent meet the requirements set out in sections 7(2)(b) and 7 (2)(c) of the Redundancy Payments Acts 1967-2014.

I find that a genuine redundancy existed.

Was there a fair selection?

The respondent’s requirement for Portuguese speaking customer service agents was explained to the complainant and was accepted.

I find on the basis of the evidence that the selection criteria were transparent and fair.

Did the employer act reasonably?

I am required to consider if in accordance with section 5 of the revised Act, the process by which the redundancy was effected was so flawed as to render the dismissal to be unfair.

Sections 9 and 10 of the Protection of Employment Acts 1977 as amended sets out the obligations resting with an employer to consult employees in a collective redundancy situation. These matters are dealt with in subsequent, separate complaints, and are numbered CA-00028192-002 and CA-00028192-003.

The complainant submits that the unreasonableness of his employer in executing the redundancy is mirrored in the authorities cited by him in support of his complaint and must therefore lead to a conclusion that he was unfairly dismissed. I must consider the proximity of the many authorities cited to the facts of the instant case. In Tolerance Technologies Ltd v Joe Foran (UDD1638/2016), the Labour Court for multiple reasons decided that the conduct of the employer in relation to that dismissal could not be held to have been reasonable. The redundancy was executed on the same day as notified, he was denied representation and the employee asked and was refused the opportunity to argue for alternatives with his board. In Ian Stewart v Post Publications Ltd (UD 206/2011), the complainant’s job had been pared away, there were no transparent criteria for his selection, an interview was held on 12 April for a job for which no job description was available until 2 days later and the tribunal found that there was another job which the complainant could have undertaken. In A Hotel Manager v A Hotel and Spa Resort - ADJ-00015257, the Adjudicator found that” after the complainant’s redundancy, other employees have been recruited and the job role of the complainant has been filled by these personnel. There was little or no consultation with the complainant and the redundancy was clearly a strategy to conceal an Unfair Dismissal”.The complainant is not arguing in the instant case that his redundancy was a cloak to conceal a dismissal. In A Production Manager V A Printing Company (ADJ-00009028), the adjudicator found

“that the actual timeframe within which the decision was taken to make the complainant redundant was only four working days” ……...It is difficult to see how the Respondent could contend that reasonable consideration, including the opportunity to discuss alternative options, was provided to the Complainant. The adjudicator found that the cost benefits of making that employee redundant demonstrated

“that the redundancy had more to do with the individual than the role”.

In Employee v Employer(UD1791/2010), the employer failed to consider the complainant for an identifiable alternative role.

In the instant case, and based on the evidence, it would be hard not to conclude that the respondent’s preferred option was redundancy from the outset. The defects identified by the complainant in the process- the change to a collective redundancy 4 days after the initial announcement, the alleged failure to examine alternatives, the failure to change the final consultation meeting and the absence of an appeal render the dismissal to be unfair. I do not find that alternatives were not examined. These shortcomings fall far short of the shortcomings and failures presented in the aforementioned authorities, the majority of which concern non- collective redundancies. Those complaints of unfair dismissal were upheld because those respondents failed to prove the genuine nature of the redundancy (the employee was replaced, UD1791/2010), the lack of impersonality in the selection, the presence of transparent criteria and failed to justify the rushed nature(4days) of the consultation period. These characteristics are absent in the instant case. These authorities are therefore distinguishable.   The Employment Appeals Tribunal in Nigrell –v- Graham UD 690 (2013) held that there was a genuine redundancy and that the absence of an appeal and the right to representation at the consultation stage (facilities which are not legally required) did not render the dismissal to be unfair

Having carefully considered all of the evidence adduced in this case and the authorities cited, I find that the respondent did not act so unreasonably as to render the dismissal to be unfair.

I do not find this complaint to be well founded.

CA-00028192-002. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations, 2000

Obligation on employer to consult employees' representatives.

Applicable Law.

Section 9 (1) of the Act of 1977 as amended requires the employer

“with a view to reaching agreement to initiate consultations with employee representatives”

Regulation 3, S.1 No. 488/2000, amending Section 2(1) of the Act of 1977 defines representatives;

“employees’ representatives', in relation to employees who are affected, or are likely to be affected, by proposed collective redundancies (whether by being selected for redundancy or otherwise), means

(a) a trade union, staff association or excepted body with which it has been the practice of the employer to conduct collective bargaining negotiations, or

(b) in the absence of such a trade union, staff association or excepted body, a person or personschosen (under an arrangement put in place by the employer) by such employees from amongst their number to represent them in negotiations with the employer;”,

The workplace was non- unionised. But the respondent opted not to put in place or suggest an arrangement for the selection of an employee representative.

I cannot accept that the HR manager meets the definition of an employee representative as set out in the Act. I do not doubt her professional execution of her duties, but she was a conduit for delivery of decisions made by management and gave no evidence of grappling with the respondent with any of the requirements set out in section 9(2)a of the Act as amended or of putting forward the type of proposals set out in section 9(2) (a) of the Act of 1977 as amended. While it is uncertain if such an arrangement which would tap into the collective knowledge would have changed the course of history, its absence must surely diminish the exploration of alternatives.

Regulation 6(2) of the European Communities (Protection of Employment) Regulations, 2000 allows an Adjudication Officer to declare that a complaint under section 9 and /or 10

‘is or, as the case may be, is not well founded and

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 (No. 10 of 1977).”

I find the complaint to be well founded and I require the respondent to pay the complainant one week’s salary to the amount of €530 in compensation for failure to comply with section 9 of the Act of 1977 as amended.

CA-00028192-003 Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 (c)

Applicable Law.

Section 10 (1) of the revised Act of 1977.

“For the purpose of consultations under section 9, the employer concerned shall supply the employees' representatives with all relevant information relating to the proposed redundancies.

(2) Without prejudice to the generality of subsection (1), information supplied under this section shall include the following, of which details shall be given in writing—

(a) the reasons for the proposed redundancies,

( b) the number, and descriptions or categories, of employees whom it is proposed to make redundant,

c) N/A

d) the period during which it is proposed to effect the proposed redundancies.

(e) the criteria proposed for the selection of the workers to be made redundant, and

(f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice.

The failure of the respondent to set up a selection process for the election of an employee representative has been dealt with in decision CA-00028192-002 above.

In the absence of a representative tasked with suppling the complainant with the prescribed information and selected in accordance with the Regulations, I find that the respondent did supply the complainant with the information prescribed in section 10 (2) of the Act of 1977.

I do not find this complaint to be well founded.

CA-00028192-004. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

It is accepted that the respondent failed to notify the Minister as required under section 10 (3) of the Act of 1977 as amended.

(3) An employer shall as soon as possible supply the Minister with copies of all information supplied in writing under subsection (2).

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of € 530 which is equal to 1 week’s wages in compensation for failure to comply with section 10(3) of the Act of 1977 as amended.

CA-00028192-005. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find that the complainant was paid for the Public Holiday which fell on the 6 May. He was not paid in respect of the public holiday which fell on the 3 June. As the complainant did not work during the 4 weeks preceding the week ending on the day before 3 June, he did not meet the requirements for payment set out in section 21 of the Act of 1997.

I do not find this complaint to be well founded.

CA00028192-006.Complaint under section 27 of the Organisation of Working Time Act, 1997.

Iaccept the evidence presented by the respondent on the day that he was paid for leave accrued for the period 1- 31 May.

I do not find this complaint to be well founded.

CA-00028469-001.Complaint under section 27 of the Organisation of Working Time Act, 1997.

Relevant law concerning payment of a Sunday premium

Section 14 (1)(a) of the Act of 1997 states

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances,”

I find that the complainant’s contract fails to identify what was payable in respect of Sunday working. Nor does it expressly provide that his salary encompasses a Sunday premium. In Viking Security Limited v Thomas Valent (DWT1489) the Labour Court stated

“In practice the Court can only be satisfied that an employee has received his or her entitlement under Section 14 (1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

I do not find the element of compensation for working on Sundays was clearly discernible.

I find the complaint to be well founded. The complainant’s uncontested evidence was that he worked four days a week Monday to Sunday and that he worked every second or third Sunday. This would mean over the referable period that he worked 1.5 Sundays x 4 months. The Court in that Viking Security Limited v Thomas Valent (DWT1489) case and in Chicken and Chips LTD T/A Chicken Hut v David Malinowski, DWT 159 measured the level of compensation for working on Sundays that was reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday.

I find that time- plus- one- third for each hour worked on a Sunday to be a reasonable level of compensation.

I require the respondent to pay the complainant the sum of €262 for the loss of the premium

I also require the respondent to pay one week’s wages amounting to €530 for the infringement of the complainant’s rights under Section 14 of the Act.

CA-00028192-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA-00028192-002. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations, 2000.

I find the complaint to be well founded and I require the respondent to pay the complainant one week’s salary to the amount of €530 in compensation for failure to comply with section 9 of the Act of 1977 as amended.

CA-00028192-003 Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

I do not find this complaint to be well founded.

CA-00028192-004. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of € 530 which is equal to 1 week’s wages in compensation for failure to comply with section 10(3) of the Act of 1977 as amended.

CA-00028192-005. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not find this complaint to be well founded.

CA00028192-006.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not find this complaint to be well founded.

CA-00028469-001.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €262 for the loss of the premium subject to all lawful deductions.

In addition, I require the respondent to pay one week’s wages amounting to €530 in compensation for the infringement of the complainant’s rights under Section 14 of the Act of 1997.

Do procedural defects render in a redundancy process render the dismissal to be unfair; collective redundancy; OWT complaints.