Complainant

Respondent

Anonymised Parties

{A Distribution Supervisor}

{A Company}

Representatives

Martin Farrelly

Martin Farrelly and Associates

Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020868-001

30/07/2018

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

CA-00020869-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020870-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020871-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020872-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00020873-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020874-001

30/07/2018

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

CA-00020877-001

30/07/2018

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

CA-00020878-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00020880-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00020881-001

30/07/2018

The Complainant is a Distribution Supervisor who worked for the Respondent from 19th February 2001 to 11th May 2018. He was made redundant on his return to work from sick-leave.

CA-00020868-001

The Complainant did not receive his annual leave entitlements of 24 days per year and seeks 49 days owed.

CA-00020869-001

The Complainant was not paid for public holidays in accordance with his contract. He is seeking payment of 30 days as agreed with the company.

CA-00020870-001

The Complainant withdraws this complaint.

CA-00020871-001

The Complainant is entitled to a travelling allowance of 55 euro per week. This was not paid while he was ill, although it is paid to staff while on annual leave. The Complainant seeks retrospection to July 2016 which is 5,610 euro.

CA-00020872-001

The Complainant claims that he was unfairly dismissed. He went on sick-leave on 8th July 2016.

On 1st February 2018 the Complainant attended a meeting while still on sick-leave where he asked if his job was gone. He was told, “things have changed. The workload has increased, we have taken on a new substantial client and have a new company that has taken over the organisation”.

On 13th February 2018 he received a letter requesting an indication of return to work by the end of February 2018 as “I am unable to keep your position open for you any longer than this”.

On 20th March 2018 the Complainant had a meeting with 2 Directors of the Company. He was not accompanied to the meeting. He was told he can apply for his job or take a redundancy package by 22nd March 2018.

The Complainant was declared medically fit for work on 26th March 2018. He was not allowed to return to work or put on payroll.

Initially the Complainant opted for redundancy, sought clarity on the terms and then decided to apply for the role of Distribution Manager. The Complainant’s solicitor raised a number of queries on the redundancy, the company refused to respond and replied directly to the Complainant.

The Complainant was told that his 8 week’s notice began on 20th March 2018 when he was notified of his redundancy.

The Complainant interviewed for the position of Distribution Manager on 24th April 2018. One of the interviewers was another Manager to whom he had not spoken for 7 years. The Complainant had dismissed the interviewer’s son from a role in the company 7 years earlier. The marking scheme has no criteria for ranking nor does it confirm what is a pass or fail. The Complainant was assessed on educational qualifications, and ability to drive but these were not stated as job requirements. There is no record of the questioning of the Complainant’s lack of a driver’s licence.

The Complainant was the de facto Distribution Manager and has been referred as such in numerous company documents. There was no discussion with the Complainant regarding the redundancy which was a sham, as the decision was already made. The Respondent presents that the role has changed but this is not correct. The terminology is different but the core components did not change. Any changes were minimal and learnable.

The Complainant claims that the dismissal is contrived to look like redundancy but no fair selection process applied. The law requires fair selection and the fact of redundancy to be impersonal. The decision to dismiss was preceded by certain behaviours by the Respondent, a new job title and job description were devised to show change. In addition, the employer did not behave objectively and reasonably. There was no consultation and proper explanation of the alleged changes required or short timeline applied in dismissing the Complainant. The Complainant relies on JVC Europe Ltd v Panisi [2011] IEHC 279 and the requirement for impersonality set out in St. Leger v Frontline Distributors Ireland Ltd [1995] ELR160. In addition, no alternatives to redundancy were ever contemplated by the company. The Complainant was asked to identify other opportunities he was interested in the company himself.

It is a dismissal disguised as a redundancy and fair procedures were not applied. There was no consultation, the process was deliberately compressed to maximise pressure on the Complainant. Selection was not impersonal and was unfair.

CA-00020873-001

The Complainant seeks 8 week’s minimum notice from 27th April 2018 when he was told he was unsuccessful for interview for the role of Distribution Manager which amounts to 6,774.48 euro inclusive of expenses.

CA-00020874-001

The Complainant seeks the appropriate payment in lieu of notice of 6,774.48 euro inclusive of expenses.

CA-00020880-001

The Complainant seeks a recommendation in relation to the dispute pursuant to S13 of the Industrial Relations Act 1969.

The Complainant lodged a grievance against the General Manager saying that he is bullying, aggressive, micromanaging, victimising and harassing him and he is being prevented from carrying out his job in a professional manner. At a meeting the following day to discuss the matter the General Manager admitted shouting at the Complainant. He then approached the Complainant and sought to draw a line under the treatment.

The Complainant went out on sick-leave on 8th July 2016. The Respondent made no reasonable efforts to investigate the Complainant’s grievance which was not resolved.

CA-00020881-001

The Complainant claims he did not receive the correct redundancy payment from 27th April 2018 and there is a shortfall of 276 euro.

The Complainant was employed since February 2001 with the company as a Distribution/Despatch Supervisor.

He lodged a complaint of bullying and harassment against a colleague on 5th July 2016, and attended a meeting with the HR Director the following day to address his concerns. The notes of the meeting indicated the issues raised were discussed and resolved. It is clear the Complainant did not wish to pursue the complaints further.

On 7th July 2016 the Complainant raised a number of concerns regarding health and safety on 7th July 2016 and the HR Director replied to say she would speak to him in the morning. The Complainant was then absent on certified sick-leave, being certified fit to return to work in March 2018.

The Complainant attended the Respondent’s Occupational Health Doctor in September 2017. At a meeting with the Respondent in 2017 the Complainant was feeling better and was hoping to return to work. At this point the Complainant had been absent 14 months. It was hoped the Complainant could return to work following full assessment. In January 2018 the Occupational Health Doctor recommended the Complainant return to work, pending certification by his own doctor and test results that he was fit to do so.

On 1st February 2018 the Complainant met with the Respondent to discuss the recent medical report. It was also explained that significant changes had occurred increasing the workload, and the Respondent was bought by another company. The Complainant was reassured his job was not gone but changes would form part of later discussions. The Respondent advised that it required confirmation the Complainant would return to work by end of February 2018 as it could not keep the role open indefinitely. By letter dated 8th March 2018 the Complainant was certified fit to return to work on 26th March 2018.

A meeting took place with the Complainant on 20th March 2018 to discuss role changes, changes in reporting lines and potential redundancies. The company wished to appoint a Distribution Manager to the site, and the Complainant could apply for this role. The Complainant was invited to identify any other roles of interest, it there was no suitable alternative statutory redundancy would be available.

The Complainant notified the company that he wished to avail of redundancy and the company agreed to an early retirement arrangement. The Complainant then applied for the role of Distribution Manager. The parties then met on 4th April 2018 and there were further discussions around the redundancy. The company also offered an ex-gratia payment of 5,000 euro.

The Complainant attended for interview for the role of Distribution Manager and was unsuccessful. Redundancy monies of 19,692 euro were paid on 17th May 2018, 41 days annual leave and outstanding public holidays.

CA-00020868-001

The Complainant went out on sick-leave on 8th July 2016 and was made redundant on 17th May 2018. He is entitled to 20 days statutory annual leave while on sick leave for year 1 April to 31 March. 1.66 per month to 31 March 2017 is 13.33 days, and 20 days from 1 July 2017 to 26 March 2018. The Complainant was paid in excess of this for 40 days annual leave, and there is no payment due.

CA-0020869-001

The Complainant was out of work on certified sick-leave unrelated to work from 8th July 2016 to 26th March 2018. The Organisation of Working Time Act 1997 S21 (5) Third Schedule precludes entitlement to public holidays where an employee is on certified sickness for more than 26 consecutive weeks due to illness or accident. The only entitlements to public holidays are 1 August, 31 October, 25, 26 December 2016 and 1 January 2017. The Complainant was paid for 7 bank holidays which is in excess of his entitlements.

CA-0020870-001

This complaint is withdrawn.

CA-0020871-001

The Respondent is not aware of outstanding expenses owed to the Complainant as this was never raised by him previously.

CA-0020872-001

The Respondent denies an unfair dismissal and relies on S6 (3) of the Unfair Dismissals Acts 1977-2015 and says an employee may contest a dismissal due to redundancy if the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer, their selection contravened a procedure/custom and practice in relation to selection for redundancy and the company had no special reasons to depart from the procedure or practice.

The Respondent submits the Complainant was the only remaining employee of the Respondent in the Distribution Supervisor role. After acquisition of the Respondent in September 2017, a consultancy company conducted a detailed review of the organisation and generated a new strategy and headcount structure which was accepted by the Board.

The Respondent relies on Barton v Newsfast Freight Ltd UD 1269/2005 which could not find the Complainant was unfairly selected for redundancy as he was the only van driver based in Dublin and there were no other employees in similar employment.   The onus is on the employee to establish that the circumstances constituting the redundancy applied equally to one or more other employees in similar employment who have not been made redundant.

The Respondent restructure resulted in 7 redundancies in 2017 and 1 in 2018 and a site shutdown.

The Distribution Manager role has additional tasks of ensuring that customer service meets the agreed plans and remain compliant with legal and company policies. The Distribution Manager is responsible for liasing with hospitality customers and ensuring their service needs are met.

In accordance with S6 (7) of the Act, the Respondent submits it behaved reasonably in its meetings, correspondence and consultation with the Complainant. The Respondent attempted to establish the Complainant’s preferred options without success due to the Complainant’s non-engagement. The role was made redundant as it was no longer viable.

CA-00020873-001

The complaint alleges the Complainant did not receive all of his rights during his notice. The Complainant was notified that he was at risk of redundancy on 20th March 2018, and he was paid his notice monies.

CA-00020874-001

This appears to be a duplication and the response is above.

CA-00020880-001

This is a claim pursuant to S13 of the Industrial Relations Act 1969, and the Respondent is at a loss to understand the reference to Bullying and Harassment procedures.

The grievance procedure is set out in the employment contract of the Complainant. A meeting was arranged by HR with the Complainant and his line manager to discuss his complaints. Operational issues were discussed at length and the Complainant was told he was not being blamed for anything. The manager said he had never been accused of bullying and was trying to do his job. The Complainant apologised to the manager saying he had concerns around health and safety. The Complainant told HR he did not wish to take the matter further.

The Complainant went on certified sick-leave on 8th July 2016 and did not return to work until 26 March 2018. His absences do not relate to alleged work-difficulties. The role of Distribution Manager for which the Complainant applied reported to the same line manager, which suggests the Complainant has no concerns.

CA-0020881-001

The Complainant commenced work with the Respondent on 26th February 2001. The Respondent recalculated the redundancy calculator with the correct end date and accepts that this was 120 euro short. The Respondent accepts this and will pay the shortfall to the Complainant.

I have considered carefully the oral and written submissions of the parties.

CA-00020868-001

The Complainant complains he did not receive annual leave entitlements of 24 days per year and seeks 49 days. The complaint is pursuant to S27 of the Organisation of Working Time Act 1997 and relates to payment of the Complainant’s 20 statutory days annual leave. The Complainant’s employment terminated on 11th May 2018.

The relevant holiday leave year begins on 1st April 2017 to 31 March 2018. The Complainant was absent on certified sick-leave from 1st April 2017 returning on 26th March 2018.

S23 of the Organisation of Working Time Act 1997 provides at S20 (1) (c ) (ii) that where an employee provides certification in respect of sick-leave, is unable to take his annual leave within the leave year, and ceases working within 6 months thereafter, the employee is entitled to annual leave in respect of the current leave year and preceding leave year. Applying the ruling in Schultz-Hoff the maximum carryover where an employee is on sick-leave for almost 12 months is 15 days leave and a further 3 days annual leave accrued on return to work, which is a total of 18 days. The Complainant was paid for 41 days of annual leave. Accordingly, I do not find this complaint is well founded.

CA-00020869-001

The Complainant was not paid for public holidays in accordance with his contract. He is seeking payment of 30 days. The Respondent denies this claim and relies on S21(5) of the Organisation of Working Time Act 1997 Third Schedule which precludes entitlement to public holidays where an employee is on certified sickness for more than 26 consecutive weeks due to illness or accident. The Complainant was paid for 7 bank holidays and I find this complaint is not well founded.

CA-00020870-001

The Complainant withdraws this complaint.

CA-00020871-001

The Complainant claims a travelling allowance of 55 euro per week. The Complainant says this was not paid while he was ill, although it is paid to staff while on annual leave.

S41 (6) of the Workplace Relations Act 2015 provides that an Adjudication Officer shall not entertain a complaint referred if it has been presented to the Director General of the WRC after the expiration of 6 months beginning on the date to which the complaint relates. The complaint was made on 30th July 2018 and cannot be made retrospective to July 2016 under this statute. I accept the evidence of the Complainant and find that payment of the travelling allowance amounts to an emolument.

The complaint is well founded and I direct payment by the Respondent to the Complainant of 55 euro per week for 18 days annual leave owed, this totals 165 euro together with compensation of 150 euro for the breach by the Respondent.

CA-00020872-001

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 provides the dismissal of an employee shall be deemed, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. S 6 (4) of the Act provides that a dismissal shall not be an unfair dismissal, if it results wholly or mainly from redundancy.

The Unfair Dismissals Acts 1977-2015 provide at Section 6 (1) (7):

“Without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.”

The Complainant was a Supervisor and has long service of some 17 years with the company. Following a dispute with a new line manager, he alleged he was being bullied and harassed in his role. He subsequently raised health and safety concerns regarding management of the yard, immediately prior to going on sick-leave for 18 months. While the Complainant was absent, the Respondent gave evidence was there were changes due to an increase in workload as a new contract was obtained. In addition, the company had been sold, and had new owners. A review then took place of the operations. Evidence was given that Consultants recommended certain changes in the Complainant’s area for the company, but no copy of the report was produced.

Due to the changes, a number of managers accepted voluntary redundancy in 2017. The Complainant was the only Supervisor who was made compulsorily redundant in the restructuring.

The Complainant was fit to return to work on 26th March 2018. As soon as he attended a meeting with the Respondent on 20th March 2018, he was served notice of redundancy.

This is a matter of some dispute as the Respondent alleges the Complainant was told he was at risk of redundancy. However, a letter from the Respondent to the Complainant of 3rd April 2018 confirms notice of redundancy was given on 20th March 2018. The Complainant was informed his role as Supervisor was redundant and a new role of Manager was being created. The role of Manager incorporated the Supervisors tasks and contained 2 new requirements.

The option of payment of redundancy was open for a further 2 days. There was no evidence of consideration of alternatives to redundancy or redeployment by the Respondent, nor any appeal available. The time-line for consideration was short, and consultation process lacking transparency. The interview panel for the role of Manager in which the Complainant was unsuccessful should be impartial without any history of difficulties with the Complainant. There was no attempt to resolve the health and safety concerns of the Complainant on his return to work in compliance with the Respondent’s own procedures.

Where a company seeks to rely on redundancy as a ground for dismissal this must be strictly construed. An essential aspect of redundancy is impersonality and the dismissal must result wholly of mainly from redundancy. The decision in Daly v Hanson Industries Ltd [UD 719/1986] is instructive in considering whether a redundancy is genuine or whether the dismissal took place under the cloak of redundancy, and if there was a cause and effect relationship between the redundancy and dismissal.

This is particularly so in all the circumstances where there is evidence of an increased workload in the Respondent and notice of dismissal is given to an employee returning from lengthy sick-leave. Redundancy may be used as a guise for dismissal of an older employee with health concerns. The successful candidate for the role of manager was a sales representative who was then promoted to manager.

I am not satisfied that the Respondent has been reasonable in its approach to the redundancy.

In all the circumstances, I find the Complainant was unfairly dismissed and the dismissal was not wholly or mainly due to redundancy. The Complainant is likely to find it more difficult to find permanent alternative work given his age and so it is just and equitable to award him compensation of 2 years salary less redundancy payment of 19,692.00 euro which is 63,196.00 euro.

CA-00020873-001

The Complainant seeks 8 week’s minimum notice from 27th April 2018 when he was told he was unsuccessful for interview for the role of Distribution Manager which amounts to 6,774.48 euro inclusive of expenses. See CA-00020872-001, the Complainant was served notice of redundancy on 20th March 2018 and was paid 8 week’s notice.

I do not find this complaint is well founded.

CA-00020874-001

The Complainant seeks the appropriate payment in lieu of notice of 6,774.48 euro inclusive of expenses. See CA-00020872-001, the Complainant’s 8 week’s notice has been paid. This complaint is not well founded.

CA-00020880-001

The Complainant seeks a recommendation in relation to the dispute pursuant to S13 of the Industrial Relations Act 1969.

The Complainant lodged a grievance against the General Manager. In response the Respondent arranged a meeting the following day to discuss the matter with the Complainant and the General Manager. The General Manager then approached the Complainant and sought to draw a line under the treatment. The Complainant made further complaints regarding health and safety the following day.

The Complainant went out on sick-leave on 8th July 2016 and was unfit to return to work until 26th March 2018. The Complainant was served notice of redundancy on 20th March 2018 when he returned to work. There was no investigation of the grievance on his return to work.

The matter is now moot given the time that has elapsed. I do not make any recommendation.

CA-0020868-001

This complaint is not well founded.

CA-00020869-001

This complaint is not well founded.

CA-00020870-001

The Complainant withdrew this complaint.

CA-00020871-001

The complaint is well founded and I direct payment by the Respondent to the Complainant of 55 euro per week for 18 days annual leave owed, this totals 165 euro together with compensation of 150 euro for the breach by the Respondent.

CA-0020872-001

The Complainant was unfairly dismissed. It is just and equitable to award him compensation of 2 year’s salary less redundancy payment of 19,692.00 euro which is 63,196.00 euro.

CA-00020873-001

This complaint is not well founded.

CA-00020874-001

This complaint is not well founded.

CA-00020880-001

I do not make any recommendation.

Redundancy dismissal, guise, ill health, annual leave while on sick leave, compensation on ceasing employment, public holidays