Complainant

Respondent

Anonymised Parties

{Worker}

{Construction Company}

Representatives

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-00028966-001

11/06/2019

The Complainant was employed by the Respondent as an installer of ceilings and partitions since 2nd March 2018. Prior to that date he attended a 10-month training course run by GRETC and the Respondent. He was notified by phone on 24th May 2019 that he should attend the workplace on Monday 27th May to collect his tools as his position was being made redundant. The Respondent confirmed that his position was made redundant and that payment had been made of 5 days pay in lieu of notice. The Complainant contends that this was not a legitimate redundancy and that he was, in fact, unfairly dismissed. The Respondent contends that there was a genuine redundancy situation and that the Complainant received all his entitlements in this regard.

The Complainant submits that he worked for the Respondent and had a positive employment record from his start date of 2nd March 2018 up until the termination of his employment in May 2019. He submits that he received a phone call from his line manager on Friday 24th May 2019 to advise him that he was being “let go” and that he should attend the workplace on Monday 27th May 2019 to “collect his tools”. He submits that during his employment he had sought meetings with senior managers of the Respondent to discuss his future but had never been granted such a meeting. He submits that he worked hard for the company and was always flexible in his approach. He was given no opportunity to discuss the redundancy and no opportunity to appeal the decision. He contends therefore that he was unfairly dismissed.

The Respondent submits that there was indeed a genuine redundancy situation and provided a breakdown of the staffing levels, the numbers assigned to various construction projects and the dates on which staff were made redundant. In total the Respondent had 96 workers involved in 5 projects. The Respondent submits that as some of those projects reached completion there was not enough new work available to maintain the existing staffing level and so there was no choice but to reduce the workforce. The Respondent submits that staff were maintained in employment as long as possible. Five staff had their employment terminated in March 2019, a further five staff in April 2019 and 8 staff were terminated in May 2019. The Respondent submits that the Complainant was paid up to 25th May 2019 and in this context was among the final two staff to have his contract terminated. The Respondent submits that this demonstrates there was a genuine redundancy and provided details of pay in lieu of notice to the Complainant.

Under the Redundancy Payments Act 1967 “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 carry on that business in the place where the employee was so employed, or

( b ) 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, or

( c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

( d ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

( e ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

There was no dispute between the parties in relation to the material facts of this case. These can be succinctly recited as follows: The Complainant was employed by the Respondent as an installer from March 2018 to May 2019 when he was notified that his employment would cease. The projects available to the company were completed or nearing completion and there was a requirement to reduce the workforce accordingly. The Complainant was contacted by his Supervisor and advised that his contract would end the following week. The Complainant received correspondence confirming the termination of his employment and details of pay in lieu of notice.

However, while the Respondent provided details of other staff whose employment was also terminated, and details of the relevant applicable dates, no information was provided to demonstrate the basis for the selection of those individuals. The Complainant contended that there was no clear basis for how staff were selected, pointing to the fact that workers who commenced employment after him remained in employment, while his employment was terminated. The Complainant clarified that these workers were made up of employees and sub-contractors. The Respondent clarified that as staff remaining in employment would be required to relocate for work selection was based on whether staff had transport and on the quality of their work. The Complainant did not share this view and contended that he had previously undertaken work in Kilkenny, Limerick and Westport when asked. This was accepted by the Respondent. The Complainant also contended that there had never been any issues in relation to the quality of his work and again this was accepted by the Respondent.

The Complainant raised concerns that he had not had an opportunity to discuss his redundancy and as the matter had been dealt with so quickly he had no chance to discuss other options. The Respondent confirmed that the Complainant had not been advised of his right to appeal the decision to terminate his employment and when asked confirmed that there was no defined policy on how such matters could be addressed within the workplace. The Respondent was of the view that the Complainant could have asked to speak to a senior manager if he had concerns.

There is an abundance of case law relating to similar situations. In the case of a Worker v an Employer (UD206/2011) of Unfair Dismissal the worker contended that in the circumstances surrounding her redundancy she had been unfairly dismissed and that fair procedures had not been applied.   In considering the case the EAT stated that “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” It went on to say that “where there is no agreed procedure in relation to selection for redundancy, .....then the employer must act fairly and reasonably.”   In this case the Tribunal found that the decision to make the employee redundant had been taken prior to the consultation process commencing and it stated that “consultation should be real and substantial”.

In the case of a Worker v an Employer (ADJ – 00001516) the worker contended that he was unfairly dismissed. In essence he argued that there was no genuine redundancy and that he had been unfairly selected as there was another employee in the role which he had previously undertaken. In this case the Adjudication Officer noted that “ the complainant was not advised of any process by which he could appeal the decision on the termination of his employment”.

In a similar case the Labour Court heard an appeal of an earlier Adjudication Officer’s decision to award €35000 to a Complainant for an unfair dismissal, again in a redundancy situation. In this case the employee contended that he was dismissed in an “expedited and personalised way.” He contended that there was no consultation with him, he was refused a meeting with senior management, he was denied the opportunity to be represented throughout the process and denied the opportunity of an appeal.   The Labour Court stated that “ in the manner in which it executed the dismissal of the Respondent, engaged in the minimum of consultation and in effect put a decision rather than a proposal to the Respondent”. It also noted that “that the Appellant made no avenue of appeal available to the Respondent in a situation where the Respondent was dissatisfied with the decision to terminate his employment with the Appellant”.

In this case, while the Court held that a genuine redundancy did in fact exist it also found “that the manner of his dismissal as result was procedurally unfair. The Respondent was not consulted adequately, he was not afforded representation at the meeting on 27thOctober 2015 and he was denied the opportunity to engage with the Company Board when he requested that facility in a situation where he was not satisfied with the termination of his employment”

In the instance of this current case it is clear that there was a genuine redundancy situation.   However, it is also clear that no efforts were made by the Respondent to consult with staff in relation to these redundancies and there was no clear and objective criteria applied to the selection for redundancy. In addition, the Respondent does not have a procedure/policy in place for dealing with such matters and no reasonable procedure was followed. The Complainant was not advised of his right to appeal the termination of his employment. In all these circumstances I find that the manner of this dismissal was procedurally unfair and that the Complainant was unfairly dismissed.

I have given careful consideration to the matters raised in this complaint and to the fact that a genuine redundancy situation did exist in this instance. The lack of any procedure in relation to selection for redundancy and the fact that the Respondent did not advise the Complainant of the right to appeal is central to my decision that this is an unfair dismissal situation. In determining the redress to be applied I am cognisant of the fact that the Complainant was out of work until October 2018 when he set up his own business.   I am also cognisant of the offer to reinstate the Complainant made by the Respondent, an offer which was made prior to the Complainant confirming his current employment status and in the context of an increase in the Respondents current available work. In all of these circumstances it is my decision that the Complainant’s dismissal was unfair. I award the Complainant the sum of €9,396 by way of compensation.

Redundancy, unfair selection, unfair dismissal, procedural defecits