Complainant

Respondent

Anonymised Parties

A Traffic Warden

A Logistics Company

Representatives

Appeared in Person

  Thomas Ryan, Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00036259-001

27/04/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 27 April 2020, the Worker in this case, while working as a Traffic Warden, submitted a claim for Unfair Dismissal in accordance with the Industrial Relations Act, 1969. While she referred to having a complaint under the Transfer of Undertakings Regulations, 2003, she had not made a valid claim under that Jurisdiction. As a result, this case was heard in private in the aftermath of Zalewski v Adjudication Officer and WRC [2021] IESC 24 as an Industrial Relations Dispute.

The Parties have been anonymised.

The Worker represented her own case and the Employer was represented by Peninsula. I wrote to the parties in advance of the hearing seeking written submissions. The Employer furnished a submission in response.

On the morning of the hearing, the worker experienced repeated Wi fi connection issues on her side.  She changed location to facilitate better coverage and assured the hearing that she was in a private location.

The Worker outlined that she had worked as a Traffic Warden for the Employer for 30 hours per week, from 25 June 2019 until her dismissal on 30 April 2020.

She submitted that the Employer had dismissed her unfairly as they had contravened the Transfer of Undertaking Regulations. At the time of formulating the complaint, the Worker was still employed and submitted that she had anticipated dismissal on 30 April 2020. The Worker confirmed that she may have had a “lapse “in completing the complaint form on 27 April 2020.

On the day before the hearing, the Worker requested to amend to title of the Employer named on the Complaint form to incorporate the name of the Public Body.

The Worker told the Hearing that she had learned from Social Media that the Parking contract was to be returned to a Public Body, from which it had previously originated. She was very annoyed by this disclosure, which had no emanated from her Employer.

She had some knowledge of Transfer of Undertakings Regulations and was aware that she was obliged to be served with 28 days’ notice of this change.

The Worker attended for interview at the Public Body but was unsuccessful. She then lost her position with the Employer.

The Worker referred to a letter of notification from the named present employer and was requested to present details of this document.

The Worker submitted that her case fell under TUPE as the contract reverted inhouse at the Public Body. She argued that this view was endorsed by the named employer in this case. She also argued that the Public Body had a duty to hire employees present at take over. The Worker mentioned that a colleague who served with her was also taking a case.

During the hearing, the Worker acknowledged that she had been offered an alternative position with the present named Employer, which had not been logistically possible for her to accept. In addition, she faced several personal challenges around this time which called for her primary attention. She had no disciplinary or sick record and had not found work since her dismissal.

The Worker told that the hearing that she was unaware that she could appeal the decision to terminate her employment.

She confirmed that she was seeking a severance payment.

The Worker undertook to furnish a copy of her contract of employment and a copy of the Grievance Procedure from the Staff Handbook post hearing.

The Employer operates a Logistics Company and has rejected the claim for Unfair Dismissal.

By means of written submission submitted prior to hearing, the Employer confirmed that the worker had commenced work as a Traffic Warden on 25 June 2019. They outlined that the Company were first notified of the loss of the traffic warden services by Social Media at the end of 2019.

The Employer noted that the Worker had not named the Public Body as an Employer in the case. The Employer submitted that the Worker did not have one year’s continuous service to bring a claim for Unfair Dismissal. An Adjudication decision did not carry binding authority.

The Employer recalled that the Worker had worked very successfully at the company and they were disappointed to lose the contract. The Employer gave the Worker more than 28 days’ notice of the change in her employment. As she was not able to accept their offer of redeployment, the employment ended by means of redundancy on 30 April 2020.

The Employer had understood that the Worker may have been hired by the Public body through a competition, but they did not have the power to affect that employment.

The Employer confirmed that they were not able to pay a severance to the Worker.

I have been requested to investigate a Trade Dispute in relation to the conclusion of employment on April 30, 2020. I have undertaken this Investigation in accordance with Section 13 of the Industrial Relations Act, 1969.I have considered both parties written and oral submissions.

I requested a copy of the contract of employment and the grievance procedure. I have not received these documents. I have received a copy of a letter dated April 2, 2020 sent by the Employer to the Worker and I will return to this.

I found that the complaint form had not been sufficiently populated to reflect the workers intention to bring a claim under the TUPE Regulations. Her complaint was acknowledged as having been received in accordance with the Industrial Relations Act, 1969. The key section on naming an employer(s) under TUPE, necessary for notification, was left vacant. I could not amend this on the day before the hearing.

  Unfortunately, statutory time limits have now passed in that regard.

On the morning of the hearing, the worker joined the hearing through her phone and while in transit. I would have preferred if she had made some protected time to address her claim as her wi fi connection was very poor and it was difficult to obtain a seamless presentation for that reason. I gave a break to allow for some restoration of” wi fi” and was assured that the” wi fi” had improved and the worker was happy to proceed. I am satisfied that I obtained both parties submissions at hearing.

 In my preparation for the hearing of this case, I wrote to both parties seeking a written submission and sight of any documentation the parties chose to rely on. The Employer made a brief written statement which was copied to the Worker in advance of the hearing. The Worker was invited to make a response to this document but did not address the content directly. She did not seek to amend the employers title(s) at that point.

The Worker confirmed the status of April 2, 2020 letter which chronicled the dateline which resulted in the cessation of her employment on 30 April 2020.

I note that the Worker told the hearing that she had been denied continuous employment with the Public Body. However, I noted that she was placed 5th on an employment panel. This suggests that an opportunity may still arise for her in that zone and perhaps should be followed up by her.

I also note that in the absence of a suitable alternative position, the worker ceased work on 30 April 2020 and has not worked since. The Worker clarified that the purpose of the claim against the employer was one of severance pay. The Employer explained that trading difficulties prevented an exploration of or offer of severance. They confirmed that they were very sorry that the contract for parking had been lost but did not accept that the worker was unfairly dismissed.

For my part, I noted that the complaint was lodged prior to the cessation of employment. This prompted me to explore the procedural framework around the dismissal. I have not had the benefit of the contract or the grievance procedure, however, the parties accept that the decision to terminate employment was not appealed. The Employer did not offer an appeal and the worker did not request one.

I accept that this period co-incided with several personal issues for the worker which took her focus off the procedural framework. The Labour Court has set down a consistent expectation that they require a claimant to exhaust internal procedures prior to recourse to a third party such as Adjudication. I am bound to consider this expectation.

I can appreciate that the worker wished to make a complaint under TUPE Regulations and got somewhat lost in her compilation of claim. I do not have a properly constructed claim under TUPE as against this employer or any other.

I do not share the Employers view that a claim under Industrial relations is without substance due it not binding the parties. This claim is reflective that an employee is in dispute and this is always a point worthy of consideration by all.

I have sympathy for the workers stated concerns in this case. She clearly loved her job and the employer was very satisfied with her performance. A third party in the form of a Public Body interrupted this employment relationship and in the absence of a suitable alternative position, the worker received notice of termination for 30 April 2020 as a forthcoming Redundancy. I appreciate that the worker did not have enough service to receive a lump sum payment of redundancy.

I now return to the stated claim in this case, that of a severance payment. Such a payment is not unknown at the end of any employment. However, it is something that needs to be put on the table during talks leading to that cessation. I am clear that this did not form the basis of any in house discussions.

I have been dissatisfied by the lack of recourse by either party to an appeal of the decision to dismiss the worker, albeit through a redundancy situation. It is important to provide and utilise any strands of conflict resolution within the employment relationship. I reference here SI 146/2000 on fair procedures in a Grievance situation.

I would respectfully suggest that the employer reviews the staff handbook to allow for this key procedural tool to aid best practice in an employment setting.

 This may have given the parties some scope to reach out to the Public Body for a definitive statement on the limitations perceived to TUPE, if any, in real time and during a live employment.

I find that the worker was understandably confused by her dismissal as a result.

I have given this claim some thought, and I have considered both parties contributions at hearing. I accept that the Employer was dealing with an unanticipated redundancy situation. They made an offer of an alternative position which proved unsuitable to the worker. The employment ended on notice through that redundancy situation. The worker was not eligible for a redundancy payment. I have not found that she should be paid a severance payment in the circumstances.

I have not found merit in the Workers claim.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have not found merit in this Dispute.

Dismissal on less than 12 months service.