Complainant

Respondent

Anonymised Parties

A Worker

Textile Company

Representatives

The claimant represented himself

Declan Thomas IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029667-001

13/07/2019

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

CA-00029667-002

13/07/2019

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

CA-00029667-003

13/07/2019

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

CA-00029667-004

13/07/2019

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

CA-00029667-005

13/07/2019

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

CA-00030722-001

07/09/2019

In his complaint form the claimant submitted as follows :

“My Employer did not provide me with a written statement of Terms and Conditions of Employment until

18/1/2019. I was employed since 2007 and I remained employed without any record of my terms of employment for 12 years.”

In their first submission to the WRC the claimants submitted as follows

With respect to breach of the Terms of Employment (lnformation) Act, 1994 sec. 3 we

say that we continued to work from time of commencement (in 2007 and 2009

respectively) without any written terms of contract.

We did enter in a verbal agreement or communicated on the daily basis in respect of

certain terms and conditions of employment (including work organisation, rotas,

duties, holidays, breaks etc) but we never until January 2019 received any actual

statement of the main terms of our employment.

Hence we were unaware (but rather had to research or guess) our legal entitlements so

as to rest breaks .thc grievance process right etc. Hence we were quite delayed in bring

forth our complaints to the employer whilst oblivious to the very existence of a certain

set of employees rights in this regard.

We say that we were put to detriment by the Respondent’s failure to comply with the

above act in that until we found out about the grievance process and WRC claim

process we were out of time with a number of issues that required a redress.

In their second submission to the WRC dated 4.11.19.the claimant submitted the following response to the respondent’s denial of the complaint

“ The Claimants were employed with the Respondent’s business since 2007.

The Respondent failed to issue to the Claimants written terms of employment for 12 years of service or until 14th January 2019.

The written terms of 14th January 20019 were not consistent with the actual and verbally agreed upon and realised terms and conditions of employment or a 12 year practice in the Respondent’s business.

In effect it was a unilaterally imposed altered version of their terms of employment. In the

circumstances it is submitted that the Respondent failed to reduce to a written form the actual terms of employment of the Claimants but instead attempted to force changes by introducing non-negotiably a new contract that was never agreed.

In particular the written document of terms of employment is defective in that it fails to define and

determine such key elements as: the “time of work” or “hours”, rate and method of pay, holiday

entitlement etc. It will therefore not comply with the Terms of Employment (Information) Act, 1994 in which event the Respondent is deemed to have failed to serve at all a written contract where the document served is not compliant with the underlying Act.

It is noteworthy that the Respondents attempted to compel the Claimants to sign a written terms of

contract that were never discussed and agreed in essential aspects (as to time, hours and duties of

employment) and moreover disregarded the verbal agreement made by the Claimants in September

2012. Notwithstanding the passage of time – the verbal agreement made in 2012 was realised and

maintained (albeit without a benefit of written contract) and without any notice a sudden change of

conditions was made and a new contract – this time in writing – was offered to sign in January 2019. The Claimants did not agree to sign such altered terms.

It is furthermore noteworthy that none of the Respondent’s employees accepted and signed such

unilaterally imposed and altered changed terms by way of a written contract.The Claimants admit what is offered under par. 4.2 of the Respondent’s Submissions that the Respondent operated under a set of rules a.k.a the “House Agreement” however it is submitted that the Respondent was notorious in altering or amending it without any form of consultation with employees which per se amounted to a breach of same. It must furthermore be added that the Respondent is notorious in its practice to continuously and unilaterally revise and tailor the House Agreement to their current needs. It is a pastiche instrument adapted and flexed to the current politics of the Respondent.

In reference to Par. 4.7 the Claimants did lodge a grievance on the 19th February 2019 which did

effectively stop the clock on the statute of limitations in that the mater of contract was unambiguously addressed and never answered by the Respondent. Further correspondence was sent on the 5th of March 2019 and followed by a meeting with SIPTU member who admittedly took the side of the Respondent and failed to discharge their duty of fair and unbiased representation.

In his direct evidence the claimant stated that they were eventually presented with written contracts in Jan. 2019 but asserted they did not reflect what had been in practise since 2012.The claimant confirmed that he had been a member of SIPTU but had left the union in June 2019.He and his wife joined the union after 3 years in employment.The claimant stated that he never saw the house agreement and only became aware of its existence in the last year.He submitted that there was nothing in the house agreement relating to shifts and contended that the agreement had been signed only by the respondent

The respondent at the outset gave an overview of the background to the Company.

(1)           Background to the Company

(2.1)    The respondent is a family owned textile business based in the Northwest who design and produce quality seating fabric and carpet predominantly for the airline industry. Fabric is produced at a separate operation in Dublin and is dispatched to the northwest site for treatment and finishing. Carpet is produced as a second site in Kc The company is providing gainful employment in the area for 65 people on a semi-skilled basis.

(2.2)    The Respondent has been a unionised company for many years and its members are represented by Siptu.

(2.3)    The textile industry in the area has been devastated over last 10 years leading to over 5000 job losses. The location of the plant is remote with little infrastructure; thus, an extensive and expensive logistics operations is required to support the company's product flow. The area has no natural gas to support the energy intensive operations of the plant and over €1 million was invested in biomass energy in 2012 to prevent oil price increases closing the plant.   Around 99% of the company's products are exported globally.

(2.4)    Similar to other independently owned manufacturing facilities in Ireland, the company has had a challenging past and continues to have a challenging future in this difficult industrial sector. The company almost went into receivership during the mid-1990's, however, a change of ownership and refocusing on the current market helped the company continue trading. Importantly, the company has not had any redundancies, nor any wage cuts over the last 20yrs. The company has focused on retraining the skill base and maintaining employment by forgoing profit margins and buying business to keep the plant running for the benefit of all stake holders, whilst the company explored other markets.

(2.5)    The aviation carpet business commenced in Kc in 2009 and from a standing start now produces 260k metres per year To achieve this growth the carpet facility production profile has changed over the last 3 years. When the facility was first commissioned long production runs where the norm however to continue to grow our customer base shorter production runs of a more fragmented nature were required. The aviation sector is challenging and in the last number of months we had the failure of Jw in India, our credit cover was withdraw on TC in July of this year (being liquidated in Sept 2019), along with C.A.. These 3 customers made up an annual requirement of 25k metres. Our production volumes peaked in 262k in 2018 and we estimate as a result of the loss of customers our 2020 volume will be 240k. Shift A running through the weekends overnight is not supported by ancillary staff and because of the current nature of smaller production runs does not make an effective return. To safeguard the remaining parts of our business the decision was taken to dis- continue the shift.

The respondent denied that there was any breach of the Act and submitted as follows:

Background to the Claimant

The Claimant commenced employment with the Respondent on 8th May 2007 and worked in the Respondents carpet premises in Kc up until he was made redundant on 7th July 2019. He was employed as a carpet weaver.

There are 5 Claims in total and it is proposed to take each claim in the order as listed on the Claimants Claim Form which is attached

(4.0)    CA-00029667-001

Claim under Terms of Employment (Information) Act, 1994

(4.1)    The Claimant in his Claim Form provides that he was not provided with a statement in writing of his terms of employment until 18th January 2019. The Respondent on the other hand will provide that the Claimant received a copy of his terms and conditions of employment on 14th January 2019. A copy of this signed contract is attached .

(4.2)       Being a unionised company, the Respondent and the workers have always worked from what is known locally as the “House Agreement” which in the past had been negotiated between the Respondent company and Siptu. This House Agreement sets out detailed information in respect to employee’s general terms and conditions of employment.

(4.3)       The Respondent has been a member of Ibec for many years as has the workers been represented by Siptu. Following the pay agreement reached in 2018 it was agreed that the House Agreement needed to be reviewed as it had been in existence for many years and it was agreed between Ibec and Siptu that the parties would work together in moving this matter forward. It was agreed to introduce individual Contracts of Employment to all workers in the company many who have worked for the Respondent prior to the enactment of the Terms of Employment Information Act, 1994.

(4.4)       Following this, on the 14th of January 2019 the Respondent issued new contracts to all employees at the Respondents two sites in Kc including the Claimant.

(4.5)       The Respondent was also the subject to an inspection by Mr. Tom Hayes from the WRC which was carried out on 24th January 2019. The inspector was satisfied that individual contracts of employment had been issued to all employees of the company and did not raise this as an issue needing any further attention.

(4.6)       Having regard to all the circumstances referred to above, it is clear that compensation in this matter is not just and equitable. The Claimant had signed Terms and Condition of employment. Therefore, this claim does not warrant compensation to be awarded in this instance.

(4.7)       Any recommendation regarding compensation would not in this instance be a just and equitable remedy having regard to all the circumstances particularly where the Terms and Conditions of Employment were issued to the Claimant on 14th January 2019 and the claim was not lodged until 13th July 2019. This was the approach taken by the Employment Appeals Tribunal in Case No. TE53/2012 a copy of which is attached .

Conclusion

In conclusion, the company would respectfully request that the Adjudicator take due consideration of the forgoing and uphold the Company’s position with respect to the above complaint. The Respondent requests that the Adjudicator for the reasons set out above find that this complaint is not well founded.

At the first hearing , the respondent’s representative stated that a number of issues arose in the factory in Oct./Nov. 2018 – IBEC ad the company met with SIPTU and it was agreed that the house agreement required updating and that contracts should be issued to all individual workers.The contracts were issued to staff in Jan 2019.IT was advanced that the Shop Steward at the time was the claimant’s witness Mr.D.McS .It was contended that the House Agreement was on the agenda when the Shop Steward was a representative .It was contended that the House Agreement did not require to be signed.It was contended that when the claimants lodged their complaints they were already in receipt of the contracts and that the contracts complied in full with the provisions of the Terms of Employment (Information) Act 1994. IT was submitted that the complaints were in time by just one day.The contracts were signed by the respondent and satisfied the requirements of the WRC.

In his complaint form the claimant complained that he did not get a daily rest period .He asserted his working hours of Fri 9.00p.m. – 9.00a.m. Saturday 5.00p.m.-5.00a.m. and Sunday 2.00p.m. -12.p.m. up to the 24.02.2019 was in blatant contradiction to the statutory 11hour break rule and he submitted that this breach was present for several years before the claim.

The claimant complained “I was not paid for 25% of the time I was required to be available for work that did not then arise (zero hours).According to the claimant “ Following a workplace inspection by a WRC inspector in January 2019 , my employer changed my rota in order to comply with the 11hr. rest break requirement.This change took effect from March 1st.2019 as follows :My Manager wrote to me on 15/2 to say my hours were being reduced from 34-29.There followed a complaint from myself and intervention by SIPTU.I subsequently was placed on call for the remaining 5 hours each week (if there was work available ) from Tuesday at 3.00p.m. – Thursday at 11.00p.m. (total on call hours =56).I informed the company that I was complying with being placed on call under the strictest protest as I never was an on call worker before”.

The claimant complained that he was not given compensation for working on Sunday .The claimant stated that his 34 hour work rota attracted the same hourly rate of €10.72 plus 33% weekend shift allowance =€14.26 total.The claimant asserted that when the Sunday premium issue was raised with his employer , the payslips were amended from the 4th.Feb. 2019 and a line showing Sunday hours and premium was added , even though the premium did not exist. He further asserted that the total for Sunday hours was incorrect.

In his first submission to the WRC the claimant submitted as follows :

With respect to a breach of the Organisation of Working Time Act 1997 sec.ll.l2 we

say that we attempted to rectify this problem by pursuing vigorously with the

Respondent our grievance in respect of lawful rest breaks which effectively was won

and working time was properly readjusted. However, the Respondent very shortly

engaged in a process that would make us redundant putting forward a claim that

compliance with the working time regulations has made our shift (and our positions )

redundant.

However for several years we were forced to accept a system whereunder we were

deprived of our lawful resting time under the Act.

53. Wth respect to breach of the Organisation of Working Time Act 1997 sec.l4 we say

that we were never paid prernium rates for working on Sundays nor were we offered

paid time allowance in lieu. In fact we were completely unaware of this entitlement

for a long time and we daresay that it was convenient for the Respondent to make it so.

Prayer

In a replying submission to the respondent’s denial of the complaint the claimant submitted as follows :

CLAIM 2– Respondent’s failure to provide adequate rest breaks

It is admitted in the Respondent’s own submissions that the company was in breach of the

Organisation of Working Time Act, 1977 by failing to provide 11 hour rest breaks.

The Respondent permitted such worktime setup to continue for 12 years or as long as the Claimants was employed. The Claimants addressed this issue several times and no action was taken until such time when the Claimants contacted the WRC services and an inspection followed to compel Respondent’s compliance with the legislation.

The Claimants seek a redress for harm and breach of their rights to rest which continued for the several years in a situation which is particularly aggravated by the Respondent’s blatant disregard of the law for 12 years and their unprecedented arrogance in same.

CLAIM 3 – Respondent’s failure to pay 25% premium for on-call or standby time

The Claimants joins issue with regard to on call time being mandatory.

The Claimants submits that the reorganisation of worktime time mandated by compliance with the provision of adequate rest break was done in such a way and manner so as to harm the employees agreed weekly hours.

The Respondent expected and required that the employees remain on call and they had no choice of decision. The Respondent will be put on full proof to show adequate provisions of the terms of employment where the employee is permitted to refuse or reject to work the on-call hours.

In the absence of such direct provision the Claimants relies on the pars 3 and 24 of the contract where the employer reserves the power to alter place or terms of employment ‘at will’ which is taken to give the employer the sole decision making authority without the requirement of employee’s consultation and acceptance. Same rule in consistence with the aforesaid was applied to additional hours and the ontract is silent on any rights of the employee to refuse same.

CLAIM 4 CA Respondent’s failure to pay Sunday premium

The Claimants join issue in respect of the entitlement for a Sunday premium. In particular the Appendix 6 as referred in the Respondent’s submissions is undated and unsigned. There is furthermore no evidence when it was issued and how and when was same communicated to the employees.The Claimants beg to submit to the Adjudicator that the Respondent had embarked on a certain course o f practice where the contract or written terms of employment were purposely kept vague, generalised or non-specific and the key terms were delegated to the mysterious “House Agreement” which was freely and arbitrarily amended to suit the “need of the day”. Such practise is clearly unethical and it at

the least borders on illegality.

In particular, the Respondent failed to reflect the elements of pay at the PAYE statements. There is no indication that the Claimants’ pay contains a premium but rather on foot of the evidence it is transparent that he is paid only a basic or bare rate of pay.

In his direct evidence the claimant stated that he and his wife were approached by management in 2012 to take on the weekend shift – he stated thatthey were assured the job was full time and when they asked was it a legal shift the respondent had replied “ Yes, no bother”.The claimant said that he and his wife were unaware that the shift was in breach of the 11 hour rest break required under the Act .The claimant said that if there had not been an inspection by a WRC inspector , they would still be doing an illegal shift.The claimant stated that because the roster had to be changed to provide for the 11hr. rest breaks, his hours were reduced from 34hrs. per week to 29hrs . per week.The claimant’s witness Mr.D.McS. gave an outline of the meetings that took place at the time to deal with the 11hr. break – 7 people had sought a vote to continue working the illegal shift but the witness said the vote never took place.Mr.McS said that he kept questioning the legality of workers voting on a shift that did not accommodate the 11hr.rest break.He said that the advice was that if staff were happy with the status quo , a vote would have to be taken.

With respect to Claim 3 , the claimant asserted that when his hours were reduced from 34-29 hours a week he was on call for 5 hours and had to be available for work on Tuesday & Thursday.The claimant asked about his verbal contract which had provided for full time employment but got no satisfaction.The claimant would get an email every week to say when he was working and he found himself having to be available on Tuesdays , Thursday & Fridays and thereby on call for 3 additional days per week.

Mr.DMcS elaborated on the meetings that ensued between SIPTU and the respondent following the workplace inspection by the WRC inspector.He stated that other workers got their attendance arrangements sorted – he and the claimant asked to start earlier – they were put on call on Tuesdays &Thursdays up to 11.p.m. – they worked under protest and were not afforded 24 hours notice.He contended that if you are placed on call , you are entitled to an additional premium of 25% and this was the nub of complaint no. 3.Eventually – after 10 weeks - the rest break issue was resolved when the claimant and Mr.McS were required to start earlier on Friday and finish a 1.00a.m. on Mondays.When the claimant and his witness were on the 34hr.week they were paid at time and 1/3 .Now they were being penalised by being placed on call and only being ppaid a flat rate.Mr.McS asked why should he and the claimant be at a loss for illegal practises by the company .He stated that it was most unfair on the claimant and himself to be so disadvtanged when workers in the other factory continued to receive the shift rate.

It was submitted that neither the claimant nor his wife were ever told they were in receipt of Sunday premium   and it only very recently was referended in their pay slips.

The respondent denied the alleged breaches and submitted as follows:

Organisation of Working Time Act, 1997

(5.1)    The Claimant alleges that he was not provided with an 11-hour rest break. The Respondents premises operated a weekend shift routine at the weekends which had existed in the company for many years. shifts were as follows;

            Friday              9.00 pm – 9.00 am

            Saturday          5.00 pm – 5.00 am

            Sunday            2.00 pm – 12.00 pm

(5.2)    As stated above there exists a collective house agreement between the Respondent and Siptu for many years and all stakeholders were well aware of the shift patterns that operate in the company at the weekends. Neither the employees working these shifts, nor the Union had cause in the past to raise any issue either individually or collectively in respect to the weekend working pattern.

(5.3)    When this matter was brought to the fore in late 2018 there were numerous

correspondence and meetings between the Respondent, Ibec and Siptu in respect to finding a solution to the issue, however none had been forthcoming. As a result, the Respondent was facing a situation whereby there was little choice but to amend the shifts of all employees effected including the Claimant.

(5.4)    In that respect, a letter issued from Ibec to Siptu on 29th January serving as 4 weeks’ notice that the working pattern in question would be changing. A copy of the said letter is attached .

(5.5)    This issue was also discussed in detail with the WRC Inspector Mr. Tom Hayes at the company premises on 24th January 2019 during his inspection. The Inspector explained to the Respondent that there was no way around the issue other than to provide the 11 hour rest break and further explained that there was no way that the Labour Court would approve a Collective Agreement between the parties which would continue to allow the technical breach of the legislation to remain.

(5.6)    The WRC Inspector requested an update from the company on 5th February in respect to how matters were progressing within the company regarding the Organisation of Working Time Act, 1997 contraventions that were identified. A copy of his e-mail to the company is attached

(5.7)    Ultimately, the company had no option but to issue a Notice on Friday 15th February 2019 to all employees affected by the change in the weekend hours. A copy of the said notice is attached

(5.8)    Since 1st March2019 there is no longer any issue in respect to the technical breach of the legislation as all employees including the Claimant with whom the breach affected had their hours changed in compliance with the legislation.

(5.9)       It should be noted that the Union had not raised any issue or had concern to lodge any claim in respect to any collective issues arising from this matter nor was there any implications for the company from the WRC inspector once confirmation was in place that the hours of work had been amended. This fact cannot be overlooked. Any recommendation regarding compensation would not in this instance be a just and equitable remedy having regard to all the circumstances particularly where the matter was resolved on 1st March 2019 and the Claimants claim was not lodged until 13th July 2019.

Conclusion

In conclusion, the company would respectfully request that the Adjudicator take due consideration of the forgoing and uphold the Company’s position with respect to the above complaint. The Respondent requests that the Adjudicator for the reasons set out above find that this complaint is not well founded.

(6.0)    CA-00029667-003

Organisation of Working Time Act, 1997

(6.1)    In his Complaint Form the Claimant alleges that he was not paid 25% of the time that he was required to be available for work. The Claimant alleges that following a result of his hours being reduced from 34 hours per week to 29 hours per week effective from 1st March 2019, that he was “subsequently placed on call for the remaining 5 hours each week”.

(6.2)    Claiming 25% premium for “on call” hours. To comply with organisation of working time legislation the Claimants hours were reduced from 34 hours to 29 hours to adhere to working time rest periods. When this matter arose, the company had a two-week lead time for the 29-hour rota for affected employees. The company then advanced it would offer an additional 5 hours work if it was available to employees to make their earnings to 34 hours until the issue was fully resolved and 34 hours re-instated. This offer of an additional 5 hours was based on hours being available. There was no obligation for the employees to accept these hours if offered, so therefore an on-call situation did not arise. The reduced hour rota commenced on 1st March 2019 and a full 34 rota was re-introduced on the 13th May 2019.

(6.3)    It is the Respondents position that the Claimant was never placed on-call and/or asked to make himself available for work “if there was work available”.

Section 18 of the Act, provides protection for employees working zero hours contracts. The Claimant was not required at any point to remain available for work during defined periods. He was not required to be on stand-by in the case that work would become available. The arrangement was that work could be offered from time to time if and when it became available with the option, for whatever reason, to decline such work, which actually happened on a number of occasions.

(6.4)    Compensation only arises where the employee is notified in advance of being required to work, or where the contract operates to require the employee to be available for work during defined periods.

(6.5)    The Act only applies where a formal arrangement is in place where employees are required to be available for a certain number of hours per week, or when required, or a combination of both. The Claimant in this instance was not required to make himself available for work at any time during defined periods nor was the Claimant expected to be on stand-by in the event that work became available.

(6.6)    The act does not apply to casual workers and the arrangement between the respondent and the Claimant was akin to a casual arrangement in that if hours were available, they would be offered and those hours offered were subject to acceptance by the Claimant. This is in effect what actually happened. Hours were offered from time to time but were refused by the Claimant with no repercussions. In this instance the Claimant had the right to refuse or accept any hours that may have been offered which in contractual terms is a casual arrangement.

Conclusion

The Respondent requests that the Adjudicator for the reasons set out above find that the said complaint is not well founded.

(

(8.0)    CA-00029667-004

Organisation of Working Time Act, 1997

(8.1)    The Claimant alleges that he is not paid an allowance for Sunday working. The Respondent refutes this in that employees required to work weekends have an increased rate of pay reflected in their pay.

(8.2)    The respondent contends that the rates of pay for weekend workers such as the Claimant are different than that of workers who work Monday to Friday. These rates of pay have been in existence for many years and their means of calculation are as set out in the House Agreement (Extract at Appendix 6).

(8.3)    It is the position of the Respondent that the rate of pay applied to these workers clearly covers the compensation requirement to work on a Sunday. It is the position of the Respondent that having negotiated the House Agreement with Siptu which has been in operation for many years that the allowance for working on a Sunday has been consolidated into the hourly rate. These rates of pay were agreed with Siptu and have been in operation for many years without issue and it is the Respondents position that when these rates of pay were introduced that all stakeholders had taken into account the allowance for working weekends including Sundays.

(8.4)    It has always been the custom and practice within the Respondent company which is also reflected in the House Agreement that workers get paid extra for working on a Sunday and the allowance for working on a Sunday is consolidated in the higher hourly weekend rates.

(8.5)    This issue had been the subject of a grievance which was lodged by the Claimant on 5th March 2019. The Claimant was represented by his SIPTU official in respect to this grievance at that time. His SIPTU Official Mr. V.H. subsequently withdrew this aspect of the Claimants grievance following a grievance meeting and confirmed by e-mail to the Respondent that “any Sunday premium rate is (and always has been) incorporated into the weekend shift premium rate”. A copy of the said e-mail is attached . When the original House Agreement was negotiated by the Respondent company and Siptu rep Mr.VH was the Union official representing the employees of the Respondent company at that time.

            Copies of the Claimants payslips are attached showing that the Sunday allowance is set out there on. Both Mr.VH , SIPTU and Mr. T.H. from the WRC were satisfied that this satisfies the requirement under the Organisation of Working Time Act.

(8.6)    The complainant commenced employment in May 2007 and has worked the weekend shifts without any issue. Since his commencement the Claimant has accepted that he is paid extra for working on a Sunday just as employees are paid extra for any overtime worked. A number of other employees also work the weekend shift and again have never raised any issue either with the Respondent or their union official.

(8.7)    Section 14 (1) of the Organisation of Working Time Act provides;

(1)  An employee who is required to work on a Sunday (and the fact that 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 requires so to work by the following means, namely -

The legislative provision above clearly envisages that, the default position in relation to pay for working on a Sunday is that it is “taken into account” in determination of pay. It is the respondent’s position that the fact the claimant had to work on a Sunday had been taken into account in determining his rate of pay otherwise it would have been specifically referred to in the House Agreement upon which the Claimant and his co-workers have been relying on for a long number of years.

(8.8) Section 27 (3) of the Organisation of Working Time, Act provides;

            A decision of a Rights Commissioner under Subsection (2) shall do one or more of the following;

(8.9)    The Adjudicator is also directed to the WRC decision in ADJ-00011124 and ADJ-00011124 where on similar issue to the present both Adjudicators found that the said complaint was not well founded in accordance with Section 27(3) above.

Conclusion

Given the collective nature of this complaint the Respondent is seeking that the Adjudicator take account of the above and that it would not be just and equitable in this circumstance to make an award of compensation. On that basis we would ask the Adjudicator to consider the alternative remedies as provided above and more particularly find that this claim is not well founded.

The respondent’s representative stated that when they were faced with the problem of non compliance with the rest provisions of the Act , the company had to deal with it – it had not been raised by SIPTU. It was submitted that the outcome of the discussions were that in order to comply with the Act the rosters would have to be revised resulting in the claimant and Mr. D.McS moving from 34hrs. per week to 29 hrs.per week.While the union had sought clarification on collective agreements and whether or not they complied with the Act , the WRC inspector would not sign off of any such arrangement according to the respondent’s representative.

In his direct evidence Mr.RR said that the weavers never asked if the   weekend shift was legal .It was accepted by the respondent that there was a breach of the Act -it was contended that the matter was rectified in May 2019 and that the claimant’s had no lodged his complaint to the WRC until July 2019.

The company representative stated that the claimant and Mr.D.McS were informed that if an additional 5 hours became available , they would be offered to them but the workers were not compelled to work those hours. Mr.RR stated that there was no question of either of them being punished for not doing those hours. The hours would be offered and the parties were entitled to decline them. It was contended that neither the claimant nor Mr.D..McS were on call – it was akin to a casual arrangement and the Act did not apply to casual workers.

The respondent’s representative chronicled the meeting between the union and the respondent following the WRC inspection.It was acknowledged that the weekend hours affected workers in both plants but that it was an easy fix to resolve the matter in the other plant.

It was asserted that on the advice   of the WRC inspector the payslips now specifically referenced premium pay.It was submitted that union official VH had confirmed that the consolidated rate of an additional 33% for weekend premium included Sunday premium.

18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours (“the contract hours”), or

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).

(2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent. of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent. of the hours for which such work has been done in that week,

then the employee shall, subject to the provisions of this section, be entitled—

(i) in case the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

or

(ii) in case the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be.

(3) Subsection (2) shall not apply—

(a) if the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection, as the case may be—

(i) constituted a lay-off or a case of the employee being kept on short-time for that week, or

(ii) was due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer's control,

or

(b) if the employee concerned would not have been available, due to illness or for any other reason, to work for the employer in that week the said percentage of hours.

(4) The reference in subsection (2) (b) to the hours for which work of the type referred to in that provision has been done in the week concerned shall be construed as a reference to the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required 2 or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.

(5) References in this section to an employee being required to make himself or herself available to do work for the employer shall not be construed as including references to the employee being required to be on call, that is to say to make himself or herself available to deal with any emergencies or other events or occurrences which may or may not occur.

(6) Nothing in this section shall affect the operation of a contract of employment that entitles the employee to be paid wages by the employer by reason, alone, of the employee making himself or her self available to do, at the times and place concerned, the work concerned.

In his complaint form the claimant asserted that he was dismissed for reasons of alleged redundancy on the 7.07.2019.”I was offered no advance notice , there was no information of any justification (economically) for any such decision , there was no selection / qualification process for me to understand why I was picked for dismissal.I was not given any alternative (redeployment)option , I was not given any time ahead to look for alternative employment.There was no process but just a decision communicated on the spot with immediate effect.

In his first submission to the WRC the claimant alleged as follows :

Breach of the Unfair Dismissal Acts 1977-2005 sc'c 6(3) and without regard to subsec.

(4) in connection with a redundancy of the C type as defined under Redundancy Payments Act 1967

sec. 7(2) (c) or in the circumstances where the Respondent Employer decided to carry on work with less or fewer employees and carried out no selection process to assess either of-:

10.4.1 the capability, competence or qualifications of the employee for perforrning work

of the kind which he was employed by the employer to do

10.4.2 the conduct of the employee

10.4.3 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 n

imposed by or under any statute or instrument rnade under statute

as is (most helpfully) defined under sec. 6(4) of the Unfair Dismissal Acts

and or where the Respondent employer failed to consider - genuinely and

fairly or at all:

10.4.4 any alternatives of time reorganisation to attempt to prevent redundancy

10.4.5 any reasonable redeployment alternatives within the business

and in the circumstances where the Respondent employer failed altogether

10.4.6 to carry out any transparent selection process or establish any fair and reasonable

(or any at) all selection criteria

10.4.7 to consult the same with the employees,

10.4.8 to conduct a fair assessment of all employees under the same set of criteria

but rather decided to focus on three pre -selected names (out of the total pool of

workers carrying similar type of work) and hand pick such three employees

who happened to lodge a certain amount of grievances in the past and same

were not resolved and proceed to dismiss the same three employees under a

veil of redundancy i.e. for an (ulterior) reason that would per se be unjust and

unfair.

Circurnstances of the alleged redundancy dismissal

11. Factual circumstances and events leading up to redundancy (including particulars of

the consultation process and inter-parte communication) are fully pleaded below in the

chronology of employment and history of grievances in further sections of these

submissions.

12. The Respondent employs a total of 25 staff.

The number of menders (i.e. employees holding same position) including the claimant’s wife (ref ADJ-00023218) was 5 of whom she had the longest length of service (10 years) and a comparably high experience and solid hands-on job skills and practical qualifications.

The number of weavers including the claimant was [3 of whom he had the longest length

of service (12 years) and a cornparably high experience and solid hands-on job skills

and practical qualifications.

13. We worked on a weekend shift a.k.a the "A shift" made of 3 workers (altogether) that

was targeted for redundancy or reduction for economical or cost management reasons

and we did not dispute the right of the employer to make such working time

adjustment that would suit the needs of the business.

14. We oppose vehemently the fact as unfair and unlawful that whilst work is being

reorganised it is particular people who arc pointed and picked for dismissal (alongside

the changes to business organisation) without a process of fair selection.

15. We emphasise that albeit the employer purported to conduct (which is documented) a

consultation process they failed completely to conduct a fair selection process and

namely failed to:

l5.l put in place a transparent fair selection mechanism (matrix) and communicate same

openly

15.2 propose objective, far and reasonable criteria (such as e.g. qualifications ,

conduct/record, skills, length of service, additional qualifications, flexibility to accept

different rotas and roster duties etc)

15.3 seek employees input on such criteria or categories of assessment as far as practicable

5.4 put forward a fair pool of potential candidates for redundancy (which in the

circumstances would include all 5 menders and all 8 weavers in the firm and not preselected single individuals)

15.5 assess all workers (here: all menders) at same criteria (i.e. by awarding score in the

categories

15.6 permit employees to have their say by e.g.canvassing their opinion (popular poll) if

practicable

15.7 consult and publish the assessment in a transparent process

15.8 allow the employee a simple fast-rack appeal or review process

16. We specifically say that the redundancy was unfair on foot of the Respondent's failure

to conduct fair selection and assessment process.

17. We specifically say that in the firm employing 25 staff where a single 3 people shift

was liquidated only 3 named individuals were pre-selected from the start and no other

potential candidates for redundancy were considered. We were never offered let alone

declined an offer of work in alternative times or days i.e. at such times during the

week when employer's business operated. It simply emanated that the A shift was

being cancelled to cancel out the staff thereon ernployed. We were perfectly capable of

carrying out same work at a different rota schedule and such opportunity was never

offered.

.

18. We further say that there was a reason or an (ulterior) motive in that under a veil of

Redundancy the respondent removed particular employees (taking the redundancy as

convenient opportunity) who had addressed serious issues in the company in the past

rather than to remove (or to avoid dealing with) problems which the dismissed

employees had brought up.

19. In particular I say that it was by our joint action -J, K and our colleague

(also dismissed ) D.McS that we exposed breaches of time organisation laws

(inadequate rest breaks) in the company and forced upon the Respondent to admit

same and rectify the time organisation at the workplace. There is ample evidence of

same in our records

.

20. We do believe that the mere facts that we pinpointed such colossal wrongdoing to the

employer was never forgotten and that retribution was bound to come in one shape or

another. The facts point that this dismissal comes very close to a typical

"whistleblowing reprisal" dismissal as we did procure a WRC inspection with the

Respondent’s business which resulted in enforcement directions .

21In result of the above , the Respondent decided to punish us by attempting to cut our

hours for own convenience. The relationships dramatically worsened and in a very

short relative timespan.

We re-state my own notes with dates and events as recorded:

22. Sept 2012 - Verbal Contract with company to work Shift A on weekends. We were

assured that shifts were full time and legal and we could evert back to original jobs if

either party was unhappy.

23. Dec 2017 - Mar 2018 - Off work certified sick due to car accident while on Christrnas

holidays March l9th 2018 – Informed by company that we each would lose 4.8 days

Annual Leave in 2018 due to this absence from work. Query was lodged with D

(Siptu). As a result we got our holidays reinstated and other staff had to be repaid

monies lost for previous years.

24. March l7th 2018 - Company closed the factory and did not inform us until 2hrs before

we were due to start work. We lost l2hrs pay each.

25. April 2018 - We used our payslips to send a query to Siptu (and D from Siptu

shopsteward) regarding incorrect rates of pay for Annual Leave/Public Holidays. Siptu

wrote to the company again. There followed discussions between the cormpany and

Siptu without resolution in May and June

26. May 3rd 20l8 - We were invited by two of our co-workers to their daughter's

Wedding. All of the other staff in our factory were off work to attend the wedding (bar

2 people who had other commitments). We requested the option to work up hours in

order to get the time off needed. We were refused by Management at first, but we

pushed the issue as this type of request (a life event) was part of our verbal contract

and was not a problem in the past.

27 . May 7th 20ltl – K.L. asked again the details of our Verbal Contract from 2012.

28. May lOth 2018 - We attended a rneeting where the company requested that our

holidays be reduced (breaking our contract.) J.Q.stated that if we refused.

then the company may go to a Continental Rota end if that were to happen our

holidays would automatically be reduced to 4 weeks, also it would be highly likely

that we would not get to take Annual Leave together as we had different jobs. May

Holidays - Factory is closed for holidays but we worked our weekend, and arranged

with K that we take our weekend off later in September. Other staff received 20

hrs overtime as holidays were being staggered but we were excluded. We told our

manager K.L. that we were unhappy about this treatment. A problem then occurred

in September.

29. June 20l8 – Claimant worked 43.5hrs plus 8hrs bank holiday but only received 3 hrs

Overtime , queried this with K.L. and it was not fixed.Claimant’s co complainant had a similar situation and K .Ldid not fix, despite repeated requests.

30. June 2018 - we took Annual Leave but did not receive our pay in advance, the same

Problem occurred one month later in July when we took Annual Leave. On both

occasions we had to complain in order to receive our money before leaving the

country.

31. July l3th 2018 - Our shift (K,J & D) were informed that we loose 2hrs

work weekly. (36 reduced to 34) We had worked 36 hrs since January 2013. This did

not happen to other weekend workers, weekday workers lost 2hrs also, but these hours

was their overtime not basic hours.

32. August 2018 - We requested dates for Annual Leave (for September) by text to K.L.

but did not receive an answer. The practice in the past was always to text our manager

2 weeks in advance our dates and it never was a problem.

33. September 2018 - lssue arose for the weekend shift as our co-worker was sent home

from work due to the fact that K.L. had not arranged cover for our being off on

Annual Leave. He then pretended that he was not aware of us being on holiday. The

company paid us our Annual Leave without any issue.

34. December 2018 – J co complainant off certified sick for 6 weeks. The company paid her Annual Leave during this period. J cormplained and requested a letter from the

company that she could show the Dept. of Social Welfare. The letter was not provided.

January l0th 2019 - Following a meeting with lBEC/Siptu/Management we were

informed that there was to be a vote with the 7 weekend workers to keep the weekend

shifts the same as always (8 and 9 hr rest breaks) but this vote never happened.

35. January l8th 2019 - Employment Contract/ Terms and Conditions were issued to us. A WRC inspection was to take place in the following days ( in reference to us not getting

I I hr rest breaks)

36. February l5th 2019 - Company informed us that new rota would have 11 hour rest break and our hours/ wages were again being reduced as a result to 29hrs. Following Siptu intervention the company returned the hours but placed the claimant on call for 5 hoursTues-Thurs, despite his protesting that he never was an on call worker.

37. March lst 2019 - January Contract amended to show 29 (+5 hrs to be arranged

weekly). March lst 2019 - company put Annual Leave plan on Notice Board. The plan

states that (for weekend staff) we would be off on Fridays following a Bank Holiday

in order to avail of the Bank Holiday, resulting in a loss of wages of 12 hrs plus 33%

shift allowance. This Company policy was not applied to the 4 weekend staff in our

other factory it was only applied to our shift. (K, J & D). We had to

complain about this also in order to get it rectified

38. March 5th 2019 - We sent grievances to the company.We attended one meeting but

we were not being listened to by our Siptu Rep.

39. March 6th 2019 - We were witnesses at a WRC hearing where our co-worker D

Mc S had previously lodged complaints against the company. He had lodged also

a request for the workplace inspection regarding the incorrect rest breaks.

40. March l7th20l9 - the claimant lost l2hrs pay as company closed the factory that Sunday and the Bank Holiday Monday ( l8th) was moved to the following Friday resulting in a loss of pay there also.

41 . March 29th 2019 - We requested time off to attend a religious family ceremony in

Poland. K.L. initially refused us even though we explained the reason. We had to

Engage the Union Rep in order to get the time off, other staff do not get treated like this.

42.April 2019 - Company requested us to clock in/out for all breaks even if we do not

leave the factory, this is not being requested of other staff.

43. May l3th 2019 - Company added page 14 to our contracts ( new rota 34 hrs weekend

full time contract)

44.May 2019 - Holidays. The company put up an Annual Leave plan but we are omitted.

Holidays were staggered and staff received 20 hrs overtime but we were excluded

again, even though we had complained about this in 2018 also. Our verbal contract

allowed us to work up extra time at flat rate in order to receive 2 extra weekends off,

and now this was being denied to us.

45. June 5th - We resent our grievances to the company outlining our losses incurred due

to the companies work practices regarding our overtime etc. We had a meeting (23rd

June) with management to explain in detail.

46. June 24th2019- received an email from K.L. with a negative response regarding our

grlevances.

47. June 25th 2019 - received registered letter from T.L. regarding work changes

and invite to meeting on Sat 29th June.

48.June 28th 2019 - We sent an email to Mr H (Company CEO) outlining

discriminatory practices being applied to us within our workplace. We have not

received a reply to this email. We subsequently sent a registered letter on 2/7/9 which

the company has received on 10/7/18. We have not received a reply to the letter.

49. Sat 29th June 2019 - Practice proposal issued where Weekend shifts to be discontinued. We are given until 5pm following Wednesday to come up with ideas to save our jobs.

50. Tues 2nd July 2019 - received registered letter confirming content of previous meeting

and negative answers to our position that we had put forward by email. We are also

invited to a meeting on the Sunday. Sunday 7th. July - We were made redundant, there

. were not any options for re-deployment given to us at this meeting and we were asked

to leave the building right away.

In concluding the submission it was advanced that “ notwithstanding there being – or not – a genuine redundancy , and notwithstanding there being -or not – a fair consultative process – a redundancy should be deemed automatically unfair if the employer failed to conduct a fair ( or any at all process of selection and assessment ) but rather predetermined a hand picked group of employees and proceeded unilaterally to dismiss them “.

The following authorities were invoked in support of the claimant’s submissions of unfair dismissal:

It was submitted that unfair process of selection is sufficient grounds to find redundancy dismissal unfair notwithstanding other criteria being satisfied. It was contended that Section 2(3) of the 1977 Act provides that a claimant who has been unfairly selected for redundancy has been unfairly dismissed – it was submitted that the EAT imposed an obligation of fair procedures on how selection is carried out .It was submitted that the pool of selection must be reasonably defined and applied to all employees in similar employments .The following authorities were relied upon by the claimants : UD12/2011 Moran v Ernst & Young; UD1259/2012 Mulqueen v Prometric Ireland and UD206/2011.

In their replying submission to the respondent’s denial of the complaints , the claimant submitted as follows :

Unfair Redundancy Dismissal

The Claimants beg to refer to his own submissions on a point of law and wishes to bring to the

Adjudicator’s attention a key fact and evidence that was not available at the time the claim and his

submissions were lodged.

Shortly following the Claimants’ redundancy dismissal the Respondent employed in June and July

2019 ten new staff in same or similar position and namely:

D.M., D.R., D.Ro.,B.H., E.H., C.L.,, D.L., E.B., , T.K.,,and A.A.

The Claimants were never contacted or offered an opportunity of employment following their dismissal.The Claimants is in the circumstances entitled advance a point that there was no genuine redundancy and that the dismissal was a ‘sham’ operation.

The Claimants respectfully pray that their claim on all counts be upheld.

In their direct evidence the claimants asserted that the company failed to take account of the range and level of experience they had gained – with the claimant having trained many of the current workforce and had experience of shift work durin the week while their partner had familiarity with all of the machines in the other factory..The claimant disputed the accuracy of the respondent’s records of the preredundancy meetings.It was asserted that the claimants were never offered or presented with alternatives to redundancy.The claimants asserted that they responded by email to the initial meeting withMr. TL.It was contended that the company had been working on their strategy for 10-12 weeks and yet they were only given 4 days to come up with alternative proposals.The claimants contended that every time they asked a question at the 2 redundancy meetings they were told the question were not relevant.

When they lodged their grievances with Mr.R.R and Mr.KL they were told to pursue the matter with SIPTU.They asserted that the union did not take into consideration their arguments when they approached SIPTU.The claimants questioned why staff were not informed of the strategic plan or included in formulating it.It was contended that in reality they only had 3 days to come up with a plan and the claimant had worked for over 10 years and his position was now filled by a 20yearold – Mr.KL’s son – who had only 6 months experience.The claimants asserted that there were plenty of orders on the other site where the claimant’s wife had previously worked – the claimants had been in touch with those workers who had informed them that there was plenty of overtime available.

Ms.MH gave direct evidence of attending the final meeting between the claimants and Mr.TL and Mr.R.R on the 7th.July .She advised that the claimants were informed at the meeting that there were no solutions other than to make both of them redundant.She asserted that the claimant’s wife stated at the meet that “ lst week you said you would come up with different solutions and that you’ll work something out and now you ‘re telling us that you are sacked”. She asserted that Mr.TL said “.. there’s nothing for you to sign .There’s nothing we can give you except redundancy , the decision has been made”.She asserted that he asked the claimants “to leave the building right now”.

The witness stated that the claimant’s wife told Mr/TL that Mr.KL had called them “f……Assholes” – Mr.TL stated that he followed up on this allegation with Mr.KL and he denied ever saying such a thing.

In his direct evidence Mr.McS said that all of the talking at the meetings was done by Mr.TL and a very short time frame was offered for alternatives.The witness said that no alternatives including the option of part time work was offered – basically “ you are gone”.

The claimant stated that if his complaint was upheld he was seeking compensation.He submitted that he had been endeavouring to secure alternative work but it was very challenging in the remote location where they lived – it was a small community and everyone in the weaving community knew each other – he said the opportunities for work were extremely limited.

The respondent denied that the claimants were unfairly dismissed   and submitted as follows:

(9.0)    CA-00029667-005

Unfair Dismissals Act, 1977

(9.1)       Adjudicator, this element of the Claimants claim concerns a complaint under the Unfair Dismissals Acts 1977. The Claimant alleges that his former employer unfairly dismissed him on the 7th July 2019. The Respondent refutes this claim in its entirety and submits that the Claimant’s dismissal was not unfair within the meaning of section 6(4)(c) of the Unfair Dismissals Acts 1977 – 2007 as it resulted wholly or mainly from redundancy.

(9.2)       The Claimant’s employment ended on 7th July 2019 following an internal review which was undertaken by the Respondent company of their carpet plant in K to assess the efficiency and effectiveness of the manufacturing facility and to identify if the business needs were been adequately met with the current operating profile.

(9.3)       This review was prompted by the formulation of their 3-year strategic plan which indicated price pressures and increasing raw materials costs, which lead to significant margin erosion. To ensure the company remained as a viable going concern the board of directors requested this review to take place and had authorised immediate corrective measure to be implemented to ensure current operations were running as efficiently as possible as well as reducing financial pressure whilst ensuring the company met changes in their business needs.

(9.4)       The Claimant worked on a weekend shift which was commonly known as shift 1. The shift pattern in question was introduced 12 years previously when the respondent first entered the carpet sector. Being totally unsupported by ancillary staff, this shift was intended to run uninterrupted batch quantities of non-complex standard carpet designs, which required no technical, design or maintenance support.

(9.5)       However, the company identified that in the last 2 years customers’ needs had changed substantially and that a production shift designed for long runs without support could not successfully meet their requirements. The Company’s proposal in this respect included the following;

It was proposed that a restructure was required for shift A for the following reasons.

o   The A shift is now required to run smaller order quantities. Smaller batch runs therefore require major changeovers during the shift which simply does not have the staff available to complete effectively. Significant downtime is occurred when changeovers are required.

o   Carpet designs are now more complex than when we first entered the market, and quality/managerial functions are not available to the A shift to make immediate assessment of potential issues.

o   Samples being run on the A shift cannot be supported by design staff because of out of hours. Our customers demand a quick turn around on sample requests, whilst using more complex designs and materials. This requirement cannot be fulfilled by A shift.

Shift A cannot run effectively and does not meet our business needs.

Proposed Re-structure

To support Shift A, headcount would have to be doubled to include an engineer, a designer and a supervisor. This additional manpower requirements would more than double the shift cost and would further increase the financial pressures on the Company, therefore the board have decided that this option is not a viable prospect and cost prohibitive to pursue.

The board has proposed that Shift A be dis-counted as it no longer meets the needs of the business and does not make a sustainable financial return. As a result of this proposal, employees who currently work on this shift would be directly affected. This proposed re-structuring may ultimately result in those positions becoming redundant.

The Company are currently considering whether these are alternative areas within the business structure whereby those employees directly affected by this re-structuring might be re-deployed.

The Company will consult directly with these employees as to whether they believe their employment could be continued and if so how, and also if there were any alternatives to the proposed redundancy.

(9.6)       By letter dated 24th June 2019   the Claimant was invited to a consultation meeting to be held on Saturday 29th June to discuss operational and staffing requirements of the company going forward. The Claimant was advised in the said letter that the company was currently considering a restructure of how work in the company would be conducted going forward and that any proposals currently under consideration may impact on his current role within the company. He was also advised of his right to be appropriately represented at the said consultation meeting.

(9.7)       On 29th June 2019 the said meeting went ahead and was attended by the Claimant and his representative Mr. M.G. , Mr. K.L. Plant Manager and Mr. T.L Financial Controller for the Respondent.

(9.8)       The Claimant was informed at the meeting that a review of the Respondents facility in K had been carried out and the reasons for such were also outlined, in particular, that the shift that the Claimant was currently working on was not making a sustainable financial return and the company were considering ending that shift. The Claimant was advised that his role may become redundant as a result but that no decisions had been made as this was a proposal only and no decisions were made at that stage. The Claimant was further advised that the company were looking at alternative roles and/or redeployment within the company for personnel working that shift and was also advised to put forward any proposals that he may have in respect of alternative work or potential areas of redeployment that he may be available to do. Notes from the said meeting are attached .

(9.9)       The Claimant was provided with a copy of the Report (Also translated into Polish)(Appendix 14) into the review of the proposed restructure and it was agreed that a time and date for a further meeting would follow when the Claimant had an opportunity to put forward any proposals he may have in respect of the Report and/or any proposals he had to make in respect of the proposed restructuring.

(9.10)    By letter dated 1st July 2019   the Claimant was provided with a detailed summary of the meeting held on 29th June and advised on the next steps in respect of the process under review. The Claimant was again advised in the said letter that no decisions about his future employment would be made until such time as he had a chance to express his views on the situation and also the Respondent had a chance to consider all the available information and possible options or alternatives to any proposed redundancy. The Claimant was also asked in the said letter to put forward in writing any proposals that he wished to be considered ahead of a proposed meeting to be held on 7th July 2019 of which he was again advised of his right to representation.

(9.11)    On 3rd July 2019 the Respondent received a written correspondence by e-mail from the Claimant regarding a number of issues raised at the previous meeting . No alternative ideas were put forward in respect to this communication.

(9.12)    A further meeting went ahead as scheduled on 7th July 2019. The meeting was attended by the Claimant and his work colleague Ms. J.K.. Notes from the said meeting are attached .

(9.13)    At this meeting the Claimant was advised that his role was being made redundant and given the reasons why. The Respondent explained what the redundancy payment would be including any holiday pay owed and pay in lieu of notice and all the required documentation was given to the Claimant at the said meeting .

(10)           COMPANY ARGUMENTS

(10.1)    It is the Respondent’s position that the dismissal of the Claimant was wholly and mainly as a result of his role being redundant. His dismissal was not unfair within the meaning of Section 6(4) of the Unfair Dismissals Acts, 1977 to 2007 which states:

“[…] 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:

[…]

( c ) the redundancy of the employee […]”

(10.2)    The Claimant’s position became redundant within the meaning of Section 7(2) of the Redundancy Payments Acts, 1967 – 2003 on the grounds that the Respondent had decided to carry on the business with fewer employees because the work for which the Claimant was employed had changed dramatically over the time that the shift was first introduced and that it was no longer viable for the company to continue this shift as it was not generating any sustainable financial return. Also, the non-availability of technical support on the shift was a determining factor and to provide same would further be cost prohibitive to the financial sustainability of the said shift.

(10.3)    In accordance with Section 1 of the Unfair Dismissals Acts 1977 to 2007, “redundancy” is defined as per Section 7(2) of the Redundancy Payments Acts 1967 to 2007, as follows:

“[…] 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—[…]

( 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 […]

(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 […]”

(10.4)    Considering that definition, a genuine redundancy situation clearly existed with respect to the Claimant’s position.

(10.5)    Aside from the above, the method used by the Respondent to identify the issues which led to the question of redundancy were fair and transparent.

(10.6)    The Respondent acted reasonably and fairly at all times. The Respondent wishes to highlight Section 7 of the Unfair Dismissals Acts, 1977 to 2007 which states:

“[…] in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

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

(10.7)    In this instance it is the Respondent’s position that it acted reasonable at all times. The Respondent had been considering the efficiency and sustainability of the business and had taken all factors into account in assessing the difficulties experienced on the weekend shift as well as the efficiency of how the work was being done. The Respondent compiled a report on such matters and discussed the contents of the report and the proposal being put forward with the Claimant in consultation. The Claimant was also afforded the opportunity to put his views forward including the opportunity to express his views in respect of the proposal which he did. However, no alternative proposals regarding redeployment were received from the Clamant for consideration by the Respondent.

(10.8)    All alternatives to the redundancy of the Claimant were considered by the Respondent in detail, however at that time no suitable or viable alternative employment existed for the Claimant within the company.

(10.9)    Throughout the redundancy process and in the course of all meetings held the Claimant was offered the right to be represented and availed of this right. This process was fair and reasonable and cannot be seen to have resulted in any element of unfairness in respect of the redundancy.

(10.10) Due process and procedure regarding consultation with the affected employees was adhered to at all times. The Claimant was afforded all rights and fair opportunities of consultation and the provision of information pertaining to the redundancy situation.

(10.11) For a claim of unfair dismissal on grounds of redundancy under the Acts to succeed the Claimant must show that the employer has conflicted with Section 6(3) of the Acts. It is the Respondent’s position, in the context of the foregoing, that no breach of Section 6(3) of the Unfair Dismissal’s Act 1977 occurred in this instance.

(10.12) As such the Respondent acted reasonable regarding the redundancy of the Claimant and the Respondent requests that in light of Section 7 of the Unfair Dismissal’s Act, 1977, that the Adjudicator take the reasonableness of the employer into account in reaching a decision, including the commercial realities and sustainability of the business into the future.

(10.13) The Respondents now operates its business in the absence of any weekend shift at that facility and the three employees affected by the cessation of that shift have not and will not be replaced.

CONCLUSION

In light of the above arguments, the Respondent respectfully requests that the Adjudication Officer finds that the Claimant was not unfairly dismissed but was otherwise terminated by reason of redundancy, and that this claim under the Unfair Dismissal’s Act 1977 be rejected.

Mr.TL presented an overview on behalf of the company of the financial imperatives that drove their decision to terminate Shift A and referenced the declining fortunes of a number of their airline customers.He submitted that the profile of Shift A operations had changed and while initially it could run uninterrupted without maintenance , quality control or supervision , changes in the market in 2017/2018 led the company to revise operational arrangements and devise a 3year strategic plan.It was submitted that Shift A involving the claimant, his wife and Mr.DMcS no longer fulfilled their business needs.If for some reason work was stopped during the night shift , they had no staff available to deal with technical or design issues.The company reluctantly took the decision to review the continuance of Shift A which was not economically viable., was not fit for purpose and they were conscious of the orders that had been lost from their customer base.He asserted that the company examined redeployment options in both plants – the carpet plant which employed 30 staff and the finishing plant involving 40 employees.Mr.TL submitted that there were no areas to which the claimant’s skills could be transferred.The shift did not meet their business needs – they made an effort to explore areas for redeployment – they concluded that shift A was an area of substantial weakness.

Mr.RR had stated that he had no knowledge of any agreement which had been referred to on a number of occasions the claimants as to what would happen if Shift A were to be discontinued.

It was submitted by Mr.KLthat the claimants’ skill sets were examined – it was submitted that maintenance support and design would be required to continue with Shift A and this was not feasible.He contended that the list of personnel who had been taken on after the claimants were made redundant – as submitted by the claimants - were young workers and 1 administrative staff member and that their duties were limited to for example collecting bobbins and that most of them worked a short number of hours per week – it was accepted that 2 from the list worked 18-28 hours per week.Only student/young workers had hours in the claimant’s plant.It was submitted that none of these positions were available when the redundancies were effected.Mr.KL insisted that the company responded to the claimant’s grievances – at that point they were unsure as to whether the claimants’ were in or out of the union.The strategic plan was devised in April 2019 as a company wide proposal – the company met the claimants in June 2019 and they were given 4 days to come back with alternative proposals to redundancy.It was asserted that the claimants were given ample time to submit any proposals and that there was no basis for asserting that the process had been unfair.