ADJ-00029991

Complainant

Respondent

Anonymised Parties

A Transport Manager

A Tourist Event Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039823-001

Withdrawn

14/09/2020

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

CA-00039823-002

14/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00039823-003

Withdrawn

14/09/2020

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

CA-00039823-004

14/09/2020

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

CA-00039823-005

14/09/2020

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

CA-00039823-006

14/09/2020

The respondent company provides tours and sightseeing events in Dublin and across Ireland.  In 2015, the complainant started working with the company as a driver and, shortly afterwards, he became assistant to the transport manager.  He then had the job of maintenance manager and when his employment was terminated in July 2020, he was the transport manager, managing the company’s fleet of 40 buses.  His annual salary was €45,000.

Before the onset of the Covid-19 pandemic, the respondent employed 170 people in a number of business units, including a museum and shop and city and country sightseeing tours.  On March 13th 2020, all the businesses closed due to the pandemic and the employees applied for the pandemic unemployment payment, the “PUP.”  Many were seasonal workers and were not generally employed during the winter months.  On the date of this hearing, July 7th 2021, the company had not re-opened.  The managing director (MD) said that he anticipates that it will be March 2022 before tourists return to Ireland and the business will open up again. 

In June 2020, the MD decided to make 11 jobs redundant, including the complainant’s job of transport manager.  The complainant’s case is that this was not a genuine redundancy and that his dismissal was unfair.  His complaint under the Payment of Wages Act is about the respondent’s failure to pay him wages and holiday pay.  Under the Industrial Relations Act, he claims that the manner in which his dismissal was carried out was not in accordance with standard procedures and, under the Terms of Employment (Information) Act, he claims that he never received a written statement of his terms and conditions of employment.  Each complaint is considered separately below.

In advance of the hearing of this complaint, the MD sent a written submission to the WRC.  It is apparent that this document was compiled in response to a different hearing, as the complainant referred to in the submission is female.  When he was asked about this, the MD said that some paragraphs relate to a different claim, but that every paragraph is relevant to the complaint under consideration here.

In the submission, the MD said that by June 2020, he knew that, even with a partial re-opening of his business, he would be unable to sustain some jobs.  He said that the company will not be the same for a number of years, and that it now where it was seven or eight years ago.  He said that since the closure, his company has been “in distress,” having to pay creditors and with requests from his banks to re-structure.  In this context, he selected the following 11 jobs for redundancy:

1.              Finance Director

2.              Marketing Director

3.              Transport Manager

4.              Marketing Executive 1

5.              Marketing Executive 2

6.              Sales Executive

7.              Accounts Executive

8.              Shop Manager

9.              Sales Assistant

10.          Operations Manager

11.          Mechanic

Apart from the mechanic, who was on an hourly rate of pay, each of the other 10 jobs attracted salaries of between €28,000 and €64,000.  The MD said that, up to the date of this hearing, his company has survived on some assistance from the State, covering costs such as rent, insurance and vehicle maintenance.  In direct evidence at the hearing, he said that the Finance Director returned to work four weeks ago and is being paid through the Employer’s Wage Subsidy Scheme.  He said that two sales executives are working remotely.  Two drivers remained at work doing school runs, but this work ceased at the end of the school term.  Referring to the complainant’s role, the MD said that there was no need for a transport manager for the foreseeable future, and, he said, “we are still in that situation now.” 

On June 16th 2020, the complainant attended a meeting with the MD to discuss “the future of your role … with the implication of the Covid-19 pandemic.”  Following this meeting, the human resources (HR) manager wrote to the complainant on June 25th 2020 and confirmed that his job was redundant and that his employment would be terminated on July 20th.  In the letter, the HR manager confirmed that the complainant had been offered an alternative job as a driver.  In his submission to the hearing, the MD said that the job of driver “never materialised anyway.”

The notes of the meeting of June 16th show that the MD planned to re-open the business with minimum capacity on July 20th 2020 and that he planned to re-structure his businesses.  The notes state that the job of transport manager doesn’t exist and that the MD would take on this job himself.  The notes also record the MD’s statement that the company couldn’t afford to pay redundancy.

In his submission, the MD said that, with no revenue coming in, the company couldn’t afford the role of a transport manager or any of the other 10 jobs that were made redundant.  He said that the complainant was not made any worse off by being made redundant because he could continue to claim the PUP and he now had the opportunity to apply for other jobs.

In relation to the process that ended with the complainant’s dismissal, the MD said that all procedures were followed and the consultation process was fair. He said that, looking back, the decision to implement the redundancies was correct.

Concluding his written statement, the MD said that the complainant was an excellent worker, but his position as transport manager was untenable and it will not be possible to pay for that job for the next couple of years.  He said that when he is able to recruit a transport manager again, he would welcome an application from the complainant.

In his direct evidence, the MD said that he used to be the transport manager and that the company has reverted back to that situation of seven or eight years ago.  Around 12 people remain at work in the company.  He said that he has no issue with the complainant, although they had “head to heads” over issues.  In two years, if the people who were made redundant come back, he said that jobs might be available.

In his written submission in advance of the hearing, the complainant described his duties and responsibilities as transport manager and his achievements in the role.

Regarding the events that led to his redundancy, he described the meeting with the MD on June 16th 2020, at which he was informed that the MD would take on the job of transport manager.  At the meeting, the complainant said that he asked the MD about a redundancy payment.  He replied that he didn’t have to do anything about redundancy pay.  The complainant’s view is that he was selected for redundancy because of complaints he made about the performance of a mechanic and the conduct of a driver.

Four months earlier, in February 2020, the complainant submitted a formal complaint about the mechanic to the MD and the HR manager.  He had serious concerns about the standard of the mechanic’s work and the risk to the safety of the fleet of buses.  He said that, as part of a due diligence investigation, he discovered that the mechanic is not qualified to do the work that he was employed to do.  He said that he was so disturbed by the failure to address the issues associated with the mechanic’s work that, on March 2nd 2020, he resigned.  The MD promised to implement certain protocols and, in the end, he didn’t resign.  He said that the mechanic is a friend of the MD and lives in a mobile home in the transport yard. 

In that same month, the complainant sought the assistance of the HR manager regarding the disrespectful conduct of a driver, an uncle of the MD.  This arose from complaints from two of the operations managers about the conduct of this driver.  The process concluded when the MD spoke to the driver privately.

It is the complainant’s case that his actions “did not sit well” with the MD.  He said that the MD “resisted all attempts by me to carry out the correct process which I believed I was both duty and morally bound to do…”

As they were leaving the meeting on June 16th 2020, the complainant said that he was offered work as a driver, “if business picks up.”  This offer was made as he was going out the door.  He described the MD’s attitude in the meeting as “hostile.” He said that it is his belief that the MD “was opportunistic and had seized upon Covid-19 as an excuse to dismiss me.”  He said that he believes that this was because of the stance he took in relation to the mechanic and a driver, against whom he initiated disciplinary proceedings. 

Aside from these issues, the complainant said that,

§    No proper reason was given regarding his selection for redundancy;

§    No consultation took place;

§    No skills were considered or analysed for assignment to a different position;

§    There was no opportunity to respond to the announcement;

§    No selection matrix was used;

§    His years of service were not considered;

§    There was no apparent fair or appropriate selection process.

In his evidence at the hearing, the complainant asked, “Why was anyone made redundant?”  He said that he doesn’t think it was necessary to make anyone redundant, because the company would resume doing business at some stage.  He said that he is not sure if everyone on the list submitted by the MD was actually made redundant.  He understands that the mechanic that he complained about is back at work.  The MD confirmed that this employee is back at work and living in the transport yard.  He said that this is “security for us.”

The complainant said that he got no assistance from the MD regarding his entitlement to a redundancy payment and that he had to apply to the Department of Social Protection.  Having been dismissed on July 20th 2020, on January 11th 2021, the MD completed the forms to enable him to receive a redundancy payment.

In the documents he submitted at the hearing, the complainant included a copy of an email that he received from the MD in response to his persistent request for a written statement of his terms and conditions of employment.  This email sets out a list of benefits, and includes the following statement:

“We will put you on the income protection scheme.”

The complainant said that there was no discussion at the meeting on June 16th or afterwards, about his entitlement to income protection.  He was not given an opportunity to apply for income protection and he is unaware if he was in fact included in the respondent’s scheme.

The Relevant Law

As this complaint of unfair dismissal is grounded on an allegation of unfair selection for redundancy, the relevant legislation is the Unfair Dismissals Acts 1977 - 2015 and the Redundancy Payments Acts 1967 - 2014.

The Unfair Dismissals Acts 1977 - 2015

Section 6(1) of the Unfair Dismissals Acts (“the UD Act”) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to provide evidence of the “substantial ground justifying the dismissal” of the complainant.  His case is that the job of transport manager was no longer needed due to the closure of his business because of Covid-19.  He said that he took on that job as well as his own. 

Section 6(3) of the UD Act provides that a dismissal will be unfair where an employer acts unfairly in the selection of an employee for redundancy or, where an agreed procedure for implementing redundancies is not followed:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

“(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

“(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

“then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

“Subsection (2)” referred to here is subsection 6(2) which addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant in this case.

In the case under consideration, “the circumstances constituting the redundancy” was the closure of the respondent’s tourist business due to Covid-19. 

Section 6(4) of the UD Act recognises the legitimate right of an employer to dismiss an employee due to redundancy: 

 “…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

(c) the redundancy of the employee.”

Sub-sections (a), (b) and (d) of this section are not relevant to this complaint.

We know from section 6(3) that this right is predicated on an obligation to select employees on the basis of fairness, and to adhere to an agreed procedure or a code of practice regarding dismissals.  Section 6(7) expands further on the issue of reasonableness and provides that, in considering a complaint of unfair dismissal, I may have regard,

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

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

In the case of this former employee, he was not a member of a trade union and no evidence was submitted regarding an agreed procedure for how redundancies were to be implemented.  In the absence of an agreed procedure, the respondent was required to ensure that the fair procedures that apply in the case of any dismissal were afforded to the complainant.  These include the right to notice, the right to be represented at meetings and the right of the employee to respond to the employer’s decision to make his job redundant. 

Redundancy Payments Acts 1967 - 2014

The starting point for a consideration of the respondent’s position is the definition of redundancy at section 7 of the Redundancy Payments Acts (“the RP Act”).  Section 7(2) sets out five definitions of redundancy and, for our purpose here, we need to concern ourselves with subsections (b) and (c):

“…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, or”

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

Considering the reasons given by the MD, that his business had ceased and that he took on the job of transport manager himself, it would appear that the dismissal of the complainant falls within the definition of redundancy, but I will explore this further below.

Section 19 of the RP Act provides that an employee who has completed 104 weeks of service is entitled to a redundancy payment, known as a “lump sum.”  Schedule 19 of the RP Act was amended in 2003 and provides that an employee whose job is made redundant is entitled to a lump sum based on two weeks’ pay per year of service, plus one week’s pay.  The calculation of the lump sum is subject to a ceiling of €600 per week. 

Was the Complainant’s Job Redundant?

Apart from two buses hired to do school runs, the respondent’s business closed completely in March 2020.  When the complainant’s  job was made redundant in June of that year, all the buses in the fleet remained in the respondent’s yard.  We know that 2020 was a disastrous year for the tourism business but, shortly before this hearing in July 2021, the MD wrote to employees, telling them that all the coaches had been maintained and improved over the past 12 months.  He said that they were close to completing the renovation of the tourist office alongside the renovation of the museum and the yard.  Weekend tours had started up again and, although he said it was “very quiet still out there,” day tours were scheduled to begin again from July 19th 2021.  In his email, the MD said that they had a lot of enquiries for the latter half of the summer and he anticipated that some normality would return by March 2022.  The MD concluded his note by saying, “I understand that some will have moved on but you are all welcome back and I look forward to seeing you all sometime soon.”  This email wasn’t sent to the complainant.

From this assessment, it is apparent that the MD anticipated that his businesses would be up and running to some degree in the summer of 2021, with a gradual return to normality in early 2022.  His decision to use the downtime during Covid to renovate the yard, the museum and the tourist office is an indication that he was confident that customers would return.  There is no evidence that he disposed of any of the buses, indicating that he expected a significant part of his re-opened business to involve the bus tours.

While I accept that there was little or no work for a transport manager in 2020 and up to the middle of 2021, it is clear that the situation was about to improve in July 2021 with the lifting of restrictions and the opening up of foreign travel.  The MD said that he took on the job of transport manager in addition to his own work; however, the job of managing and scheduling 40 buses is a considerable workload and, in my view, could not be done by someone who is also the managing director.  I am certain that it would be an impossible undertaking for a managing director who has eliminated the roles of finance director, marketing director and eight management roles in sales and operations.

Based on this assessment, it is my view that, in June 2020, when he was dismissed, the job of transport manager was not redundant.  I accept that this job was not required to be done at that time; however, it is clear to me that the MD anticipated that his business would resume operating as soon as the restrictions on foreign travel were lifted.  It is also apparent that the MD never considered that the role of transport manager would not be required, as he claimed that he took on the job himself.  It is my view that the complainant should have been permitted to remain out of work and laid off until the bus tours started again in July 2021.  This was the purpose of the government initiatives in the form of the PUP and other wage-related supports; their objective was to avoid redundancies and to maintain the relationship between employers and their employees, so that employees could return to work when the country opened up again. 

From my observation of both sides at the hearing of this complaint, it is apparent that the complainant’s efforts to address the conduct of a mechanic and a driver resulted in a strained the relationship between him and the MD.  In his evidence, the MD said that the complainant was “on a witch hunt” regarding the mechanic.  The MD’s statements about the complainant and his demeanour at the hearing leads me to agree with the complainant when he said that the MD used the excuse of the Covid pandemic to dismiss him.  

Was the Process Fair?

I have referred to the fact that the respondent had no procedures for handling business fluctuations and down-turns and no process for selecting employees for redundancy.  Aside from this, we know that section 6(7) of the UD Act requires employers to act reasonably when dismissing an employee for any reason.  In the context of redundancy, reasonable conduct means that the employee receives adequate notice that their job is at risk, that they have an opportunity to respond and to consider alternatives and that they are allowed to be represented at meetings with their employer.  Where an employee is dismissed due to redundancy, a reasonable employer will ensure that the employee is paid his or her redundancy lump sum without unnecessary inconvenience or delay and that they receive all their outstanding pay and benefits.

Following the meeting on June 16th which he attended with his partner, the complainant had no further discussions with the MD and he had to make several efforts to get confirmation of the MD’s proposals.  On June 25th, he received just over three weeks’ written notice from the HR manager that his job would be redundant on July 20th.  It is apparent that no proper consultation took place regarding the risk to his job and the suggestion that he could take on the job of a driver was entirely disingenuous.  I find it highly irregular that there is no reference in the letter of June 25th to the complainant’s entitlement to a redundancy payment.  This supports his assertion at the hearing that the MD said that he didn’t have to pay a redundancy lump sum.  Six months after his employment was terminated, the MD completed the social welfare forms to enable the complainant to claim a redundancy lump sum from the Department for Social Protection, an indication of the MD’s complete disregard for this employee’s rights.  On the date of the hearing of this complaint, more than one year after his employment was terminated, the complainant had still not been paid outstanding wages and holidays.

Conclusion

In an important decision of the Employment Appeals Tribunal (EAT), St Ledger v Frontline Distributors Ireland Limited[1], the chairman, Mr Dermot McCarthy remarked that redundancy “has two important characteristics, namely, impersonality and change.”  In 2003, this and other decisions of the EAT led to the amendment of section 7(2) of the Redundancy Payments Act and the insertion of the statement which emphasises that redundancy is impersonal, and “not related to the employee.”  The focus of redundancy must be on a job; its purpose is to eliminate a job or to effect change on a job and the decision to dismiss an employee due to redundancy cannot be motivated by personal animosity.  It is apparent that the conduct of two employees and the reluctance of the MD to address this conduct was causing conflict between him and the complainant.  Secondly, the job of the transport manager remained intact and needed to be done as soon as the business was back up and running.  While the complainant’s job was not required between March 2020 and July 2021, in the long term, there is a requirement for a dedicated transport manager, and one who is also the managing director.

In conclusion, I find that a redundancy situation did not exist in June 2020 and from a substantive and procedural perspective, the dismissal of the complainant was entirely unfair. 

I have concluded that the dismissal of the complainant was unfair and I decide therefore, that his complaint of unfair dismissal is well founded.  While the MD said at the hearing that there might be a job for the complainant in two years’ time, I do not believe that this was genuinely meant and it is clear to me that relations between both sides have completely broken down.

Of the redress options available, the complainant selected compensation.  On the date of the hearing, on July 7th 2021, he said that he had not taken up new employment and he had therefore been unemployed for almost a year.  With the complainant’s experience and, in line with the opening up of the economy in the latter half of 2021, I am convinced that he will not be unemployed for very much longer.  In considering the amount of compensation to award, I must have regard to the fact that the respondent’s business opened up again in July 2021 and that, if he had not been dismissed, it is unlikely that the complainant would have returned to work earlier than January or February 2021, in preparation for the re-opening.  I decide therefore, that the respondent is to pay the complainant €16,404 in compensation for his unfair dismissal.  I have based this award on an estimate of the complainant’s gross earnings for six months, less €6,096 he received in statutory redundancy.  As this award is in the form of loss of earnings, it is subject to the normal statutory deductions.

In the documents he provided at the hearing, the complainant submitted a copy of his final payslip dated March 12th 2020.  He received no wages after that date, although he said that bus tours were conducted until March 18th 2021.  He said that, from then until March 30th, he worked tidying up all the buses.  He received the PUP for the second two weeks of March, but he said that he was working during that time and that the MD told him that his wages would be paid when the business opened up again.  He claims that he is owed his wages for the second two weeks of March 2020.

The complainant said that he took no holidays in 2020 and that he is entitled to pay for holidays accrued up to the date of his dismissal on July 20th. 

At the hearing of this complaint, the MD said that he hadn’t got the money to pay the complainant’s wages.  He said that holiday pay will be paid “when the company is in a position to pay it.”

While the complainant said that he worked “voluntarily” during the last two weeks of March, I am satisfied that he carried out necessary work for the respondent and that he did that work because he was committed to the company and to protecting its assets.  While the business may not have taken in any revenue from the middle of March 2020, the respondent said that the yard, museum and shop had been renovated during the lockdown.  It is apparent therefore, that some funds were available.  In any event, the MD produced no evidence to show that the company was in financial difficulty financial in March 2020.

The complainant is legally entitled to €1,284 in respect of his net wages for the two weeks from March 16th to 27th 2020. 

Annual leave does not accrue during periods of lay-off and the complainant is entitled to five days’ holidays which accrued between January 1st and March 31st 2021 ((20 ÷ 12) x 3).  This is equivalent to one week’s net pay, which is €642.

I decide that this complaint is well founded.  In accordance with section 6 of the Payment of Wages Act, as amended, I am required to direct the respondent to pay compensation as a net amount.  On his complaint form, the complainant stated that his net fortnightly pay is €1,284.05.  I decide therefore that the respondent is to pay the complainant compensation of €1,226, equivalent to three weeks’ net pay (€1,926) less €700 in respect of two weeks’ PUP that the complainant said he claimed for the last two weeks of March 2020.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

Under this heading, the complainant said that he has a grievance regarding the MD’s response to his efforts to do his job properly.  This matter relates to the performance of the mechanic and the conduct of the driver.  The complainant made strenuous efforts to address these problems and, as he tried to introduce proper standards and protocols, he thought that he had the support of the MD.  When it came to address the behaviour of both men however, he said that the MD accused him of being on a “witch hunt” and did not follow through on his commitment to bring about the changes that were required.

The complainant said that, because of the risks that the mechanic posed to the business, he told the MD that he would resign.  His grievances are outlined in a detailed letter sent to the MD on February 24th 2020, a copy of which was submitted in evidence.  He said that he didn’t follow through when the mechanic himself resigned and left Ireland to return to his home country.  He understands that the mechanic’s working visa expired in 2016.  However, the complainant said that the mechanic returned to Ireland and is now back working with the company, and living in the transport yard in a mobile home.

Concerning his current predicament and the fact that he has been unemployed for more than a year, the complainant said that he should have received a proper reference from the MD.  He said that not having a reference is inhibiting his efforts to find another job.

In his response to this grievance, the MD said that he understood where the complainant was coming from and, at the hearing, he acknowledged that the mechanic “wasn’t good.”  However, he said that there was no evidence that the work of the mechanic placed the buses in danger and that he was advised by his HR manager that there wasn’t enough evidence to dismiss him.

With regard to a reference, the MD said that he would have given the complainant a reference if he had asked for one.

This subject of this grievance is the manner in which the MD handled the problems associated with the performance and conduct of the mechanic and a driver.  It is absolutely apparent that the MD’s failure to address the problems caused by these two employees made life extremely difficult for the complainant, and that their behaviour had a negative impact on him trying to do his job well.  I find that the complainant made strenuous efforts to address the situation and to protect the company from a charge of negligence; however, it appears that the MD felt unable to exert the authority required to bring about the radical change needed to resolve the issues.

As the complainant is no longer working with the company, having been dismissed, the only redress I can recommend is compensation.  It is my view that a financial award would not be a reasonable response to this problem, and I note the complainant’s assertion at the hearing that he was not seeking compensation.  I think it will be sufficient for him that I commend his efforts to ensure that the respondent’s passengers were not placed at risk because of shoddy mechanical work and that other employees were protected from the abuse that he said they suffered because of the conduct of the driver.

Regarding a reference, the MD said that he would provide a reference if he was asked for one.

In view of the breakdown in the relationship between the MD and the respondent, I recommend that the complainant drafts a reference that describes the work that he did and his achievements when he worked for the respondent.  I recommend that the MD reviews the complainant’s draft reference and that, subject to reasonable factual amendments, that he issues this on company notepaper so that the complainant can provide it to prospective employers as a record of his work with the respondent between 2015 and 2020.

The complainant said that, despite his serious efforts, he was not issued with a written statement of his terms and conditions of employment.  He said that when he was promoted to the role of transport manager in August 2019, he received an email from the MD with a list of the main benefits associated with the job, including a salary of €45,000, access to the income protection scheme, and use of the company van.   He provided a copy of this email, dated August 8th 2019.

At the hearing, the MD said that he “informally agreed terms about wages and benefits” with the complainant and that these were meant to be “put into a contract.”  The day after the hearing, on July 8th 2021, the respondent sent a copy of a contract to the WRC.  This document is dated August 15th 2019.

I am satisfied that, for the duration of his employment with the respondent, the complainant was never issued with a statement of his terms and conditions of employment.  Even from the evidence of the MD, it is clear that the complainant did not receive such a statement, despite the sending of a contract dated August 15th 2019 to the WRC on July 8th 2021.

Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.  In the case of this complainant, he commenced work with the respondent in August 2015.  Therefore, the un-amended provisions of section 3 of the Act apply and he was entitled to a written statement of his terms and conditions within two months of his start date.  Generally written up in the form of a contract, these statements are to include the following:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, despite his repeated requests for a contract when he was promoted in August 2019. 

It is apparent from the evidence of the MD in this case that he was aware of his legal responsibilities to this employee regarding his entitlement to a written statement setting out his terms and conditions of employment.  The effect of not providing such a statement means that the employment relationship was tarnished with uncertainty, making it difficult for the employee to assert his rights during, and at the termination of his employment. 

I refer to the Labour Court decision in 2019 in the case of Megan Hayes Kelly and Beechfield Private Homecare[2], where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on this complaint, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  I note that this approach has been followed in more recent decisions of the Labour Court in Top Cap and Jean Gillespie[3] and Horan Eco Services Limited and Vaida Smigelskiene[4].  As the failure to issue any statement of terms and conditions of employment must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

This complaint under the Terms of Employment (Information) Act 1994 is well founded and I therefore decide that the respondent is to pay the complainant €3,461.54 in compensation, equivalent to four weeks’ pay.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

CA-00039823-002:  €16,404                 Award for unfair dismissal

CA-00039823-004:  €1,226                   Compensation for non-payment of wages and holidays

CA-00039823-006:  €4,461.54             Compensation for failure to issue a statement of employment

Total award:            €22,091.54

Unfair dismissal, not a redundancy, grievance, failure to issue a statement of terms and conditions of employment