ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029280

Parties:

	Complainant	Respondent
Parties	Andrew Ryan	Heneghan Premier Services Ltd

Representatives

Des Courtney SIPTU

Denise O Brien, Watch Your Back Ireland

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00039220-001	18/08/2020

Date of Adjudication Hearing: 30/11/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

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

Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

On the morning of the hearing, the Respondent’s representative submitted a postponement request on the following grounds:

“We have not, and never received a submission document from the complainant. I do not know if one exists – as when I queried it with PRU I was advised there wasn’t one available.

We have therefore not had an opportunity to respond to the claims in our own submission.

All we know is that there is an unfair dismissal claim, following from a redundancy process.

The employers (Jennifer and Matthew Heneghan) are not available today and both are required for evidence in this case.”

As this initial request was not acceded to, the Respondent’s representative attended the hearing and stated that she was once again requesting an adjournment on the grounds that the Respondent did not receive a copy of the Complainant’s submission until the day of the hearing and was not therefore in a position to prepare a submission of their own.

Despite having repeatedly explained to her that the burden of proof in an unfair dismissal case is on the Respondent, and that it was not therefore necessary to see the Complainant’s submission, the Respondent’s representative insisted that it was in fact required. Given that she either failed to understand or refused to listen to what I had to say, I informed her that I was proceeding with the hearing.

The Respondent’s representative then explained that she was only made aware for the first time on 25 November of the time and the date of the instant case and that this had only happened because of a chance hearing she had with the concierge on that day. In my view this assertion is simply not credible because a review of the file during the hearing showed that the email notification of 21 October 2021 with the time and date of the hearing was sent to the Respondent’s representative email address that was on file and that she had previously used to correspond with the WRC. This was confirmed after the hearing in a conversation with the concierge who stated that while the Respondent’s representative had discussed the instant case when they had spoken the previous week, she was well aware that the hearing of the instant case was proceeding as scheduled.

Having explained that I would be proceeding with the hearing because there were no grounds on which to adjourn the matter until a different day, I informed the Respondent’s representative that I would nonetheless allow her a short period of time to contact her clients in order to facilitate their attendance at the hearing. She informed me however that the Respondent’s witnesses were unavailable and would be unable to attend the hearing because they were “busy”.

The Respondent’s representative then indicated that she would be leaving the hearing despite having been told by the Adjudication Officer that she could stay.

I then explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the Complainant agreed to proceed in the knowledge that decisions issuing from the WRC would disclose his identity.

As the Respondent did not give evidence at the hearing, a conflict of evidence was not going to arise and it was therefore not necessary to take sworn evidence from the Complainant.

Background:

The Complainant was employed by the respondent company as a Driver. His employment commenced on 1 August 2018 and ended with dismissal on redundancy grounds on 24 July 2020. He is asserting that he was unfairly selected for redundancy and that there were no grounds for same.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Driver/Installer. His employment commenced on 1 August 2018 and ended by way of dismissal on redundancy grounds on 24 July 2020. He was paid €507 a week.

Following a period of lay-off occasioned by Covid-19, the Complainant received an e-mail from the Respondent on 10 July 2020 claiming that he had “left voluntarily on 16th of March 2020” and, that “your position is redundant for you to return to”.

Attached to the Respondent’s e-mail was a letter entitled ‘Covid-19 and Recent Correspondence’ which stated that the Complainant’s “position will be redundant on July 24th, 2020”, that “we are going to have to make your position redundant” and that “The next 7 days will serve as a consultation period and you are entitled to ask any questions in writing”

Further correspondence issued on 20 July 2020 confirmed the 24 July redundancy date, and stated that “This decision was made on a case by case basis”, as well as “Staff that were already on temporary lay-off were prioritized for selection for redundancy, as this avoids unnecessary mingling of staff who have remained working and staff that have been on lock down with their families. This was done as a health and safety precaution”.

Diane Jackson of SIPTU replied on the Complainant’s behalf on 31 July 2020 stating inter alia:

We contend there is no justification for this proposed redundancy. The reasons

given in your letter of the 20th July, i.e. as this avoids unnecessary mingling of

staff is clearly not grounds for redundancy plus we understand van numbers

have increased with new employees recruited by the Company while our member

continues to be available for work.

In the absence of a reply from the respondent company, the Complainant referred the matter to the WRC on 18 August 2020.

Summary of Respondent’s Case:

As highlighted above, the Respondent’s witnesses did not attend the hearing to give evidence and despite having been informed in writing on 2 February 2021 to provide a written statement outlining the reasons behind the dismissal, the Respondent failed to do so.

It was also of some concern to the Adjudication Officer that the Respondent’s representative did not appear to understand the concept that the burden of proof in an unfair dismissal is on the Respondent and that it was not therefore necessary to see the Complainant’s submission in advance.

Findings and Conclusions:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) n/a

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) n/a

Findings

As the Respondent did not attend the hearing to attend to give evidence, the burden of proof was not discharged and I therefore find that the Complainant was unfairly dismissed. Accordingly, I must only decide on the appropriate remedy in line with s 7 (1) of the Act outlined above.

I note firstly that the Complainant is still out of work and that his preferred redress is re-instatement. In these circumstances and in the absence of any objection whatsoever having been presented to me by the Respondent, given their failure to attend the hearing, I find that the Complainant should be reinstated by the Respondent in the position which he held immediately before his dismissal on the terms and conditions on which he was previously employed.

The date of re-instatement must be 24th July 2020, namely the date of the dismissal, and the Respondent shall pay all of the remuneration to the Complainant that has accrued since this date.

Decision:

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

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

As outlined above, I find that the Complainant should be reinstated by the Respondent in the position which he held immediately before his dismissal on the terms and conditions on which he was previously employed.

The date of re-instatement shall be 24th July 2020, namely the date of the dismissal, and the Respondent shall pay all of the remuneration to the Complainant that has accrued since this date.

Dated: 06th December 2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words:

Re-instatement; burden of proof