Complainant

Respondent

Parties

Paul  Dunican

Pat O'Donnell & Co

Complainant

Respondent

Anonymised Parties

Representatives

  Self.

Thomas Ryan, Peninsula.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041112-002

18/11/2020

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

CA-00041112-003

18/11/2020

The Complainant was engaged as an area Sales Manager in the Respondent organisation, he commenced employment on 15th April 2019. His position was made redundant on 20th July 2020 and he was placed on Gardening Leave until the 20th October 2020.

This complaint was received by the Workplace Relations Commission on 18th November 2020.

Prior to the hearing of the complaint the parties were provided with a verbal summary of the Supreme Court judgement in Zalewski v Adjudication Officer and WRC [2021] IESC 24. Both parties opined that the hearing could proceed as it was doubtful if any conflicting evidence would be heard during the hearing of the complaint.

CA-00041112-003 -  Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Background:

1. The Complainant was engaged as an area Sales Manager.

2. The Complainant was taken on as a salesperson to sell products for two

suppliers – Supplier 1 and Supplier 2 (Predominantly Supplier1).

3. The Complainant commenced employment on the 15th April 2019;

4. Irreconcilable differences arose between the Respondent and one of the

suppliers – Supplier 1 causing the Respondent to cease doing business with this

supplier;

5. The potential market for Supplier 2 alone would not solely sustain a salesperson in employment.

6. The Respondent denies that the Complainant was promised (at interview stage) that he would be kept on in employment if the product he was selling failed to sell and that he would given alternative work;

7. The Complainant was paid an annual salary of €60.000;

8. The Complainant’s position was made redundant on the 20th July 2020 and he was placed on Gardening Leave until the 20th October 2020;

9. The Complainant has taken a case under the Payment of Wages Act 1994, claiming a deduction in wages of €1,310. A Revenue Deduction of €1,310 was made by Revenue due to the fact that there was no mileage submitted by the Complainant;

10. The Complainant has taken a case under the Organisation of Working Time Act 1997 claiming that he was promised seventeen days annual holidays. Pro rata the Complainant was entitled to 17.5 days, less seven days holidays taken in 2020. The respondent accepts that the Complainant is entitled to 10.5 days annual holidays.

Dismissal / Redundancy.

The Respondent refers to section 6(1) of the 1977 Act which states as follows:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances,

there were substantial grounds justifying the dismissal.”

Specific emphasis is placed on the words “having regard to all the circumstances”. On a point of law, therefore, it cannot be the case that a procedural flaw alone can render a dismissal unfair as a court or tribunal must have regard to all the circumstances.

The Respondent refers to the judgment of the Circuit Court in Elstone -v- CIE (13 March 1987, unreported) where it was determined as follows:

“That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6(1), that regard must be had ‘to all the circumstances’, and not to one circumstance to the exclusion of all others.”

Furthermore, Barron J in Loftus and Healy -v- An Bórd Telecom, High Court 13 February 1987, stated that with respect to unfair dismissal claims, “regard must be had to all the circumstances” and that “[t]he primary consideration is to determine the ground for the dismissal. “Accordingly, it is submitted that a flawed redundancy procedure cannot of itself render a dismissal unfair.

It was submitted that a flawed redundancy process can only justify a finding of unfair dismissal where the flaw(s) imperilled a fair result.

It is further submitted that there is no code of practice or case law which sets out the minimum requirements for a redundancy process in every situation. It is therefore submitted that the fairness of the dismissal must be primarily assessed against whether or not there was a genuine redundancy situation.

In this respect, the Respondent refers to the High Court judgment in Shortt -v- Royal Liver AssuranceLtd.[2008] IEHC 332, where Laffoy J clearly outlined, in the context of conduct related dismissals, “[t]he important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result.”

The respondent specifically referred to the Court of Appeal decision in RAS Medical Limited T/A Park West -v- The Royal College of Surgeons in Ireland [2017] IECA 228 where it was held as follows:

“Fair procedures do not dictate the outcome of a process… There are of course no absolutes in law or in life and there are occasions when the rules of fair procedures have to give way because of

pressing exigencies to less considered or reflective processes.”

Accordingly, it is submitted that the primary consideration is “to determine the ground for the dismissal” and whether or not the redundancy process imperilled a fair result.

The Respondent refers to the EAT decision in Nigrell -v- Graham (UD690/2013). In that case the EAT summarised that “The respondent’s representative accepted that there was a valid redundancy situation and that the respondent’s complaints related to a failing on the employer’s part in affording fair procedures.” The EAT went on to conclude that there could not be a finding of unfair dismissal in such circumstances, concluding as follows:

“The Tribunal was not persuaded by the respondent’s arguments that in all instances an employer must:

(a) afford the affected employee an opportunity to respond to the proposed redundancy or

(b) facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or

(c) have a right to appeal the decision to make the employee redundant.

Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal.”

The Respondent refers to the WRC decision in Senior Customer Service Representative -v- Customer Call Centre Service (ADJ-00021532). Here, the Adjudicator cited with approval the above EAT decision in UD690/2013 (Nigrell -v- Graham (UD690/2013) and concluded as follows:

“I am required to consider if in accordance with section 5 of the revised Act, the process by which the redundancy was effected was so flawed as to render the dismissal to be unfair.… The complainant submits that the unreasonableness of his employer in executing the redundancy is mirrored in the authorities cited by him in support of his complaint and must therefore lead to a conclusion that he was unfairly dismissed… The Employment Appeals Tribunal in Nigrell –v- Graham UD 690 (2013) held that there was a genuine redundancy and that the absence of an appeal and the right to representation at the consultation stage (facilities which are not legally required) did not render the dismissal to be unfair. Having carefully considered all of the evidence adduced in this case and the authorities cited, I find that the respondent did not act so unreasonably as to render the dismissal to be unfair.”

In this respect it was submitted the ground for dismissal was redundancy and that the redundancy was genuine and in keeping with the definitions set out in the Redundancy Payments Acts.

It was submitted that even if a procedural flaw arose at the consultation stage the claimant did not exercise his right to appeal.

The Respondent refers to the Supreme Court judgment in Rowland -v- An Post [2017] IESC 20 which concerned questions as to when “a court should intervene by injunction, declaration or any other means, in a process having a disciplinary or similar character, which is still ongoing.” The Supreme Court, albeit in the context of disciplinary procedures, stated as follows

… In many cases the proper approach of a court when called on to consider the validity of a disciplinary-like process is to look at the entirety of the procedure and determine whether, taken as a whole, the ultimate conclusion can be sustained having regard to the principles of constitutional justice. Many errors of procedure can be corrected by appropriate measures being taken before the process comes to an end. Decision makers in such a process have a significant margin of appreciation as to how the process is to be conducted (subject to any specific rules applying by reason of the contractual or legal terms governing the process concerned). Thus, the exact point at which parties may become entitled to exercise rights such as the entitlement to know in sufficient detail the case against them, the entitlement in appropriate cases to challenge the credibility of evidence and the right to make submissions are, at least to a material extent, matters of detail to be decided by the decision maker in question provided that the procedures adopted do not, to an impermissible extent, impair the effectiveness of the exercise of the rights concerned. Precisely because procedural problems can be corrected and because there may well be a significant margin of appreciation as to the precise procedures to be followed it will, in a great many cases be premature for a court to reach any conclusion on the process until it has concluded.

 It was submitted that the Supreme Court’s point is clear. Procedural flaws may arise during a dismissal process but those “procedural flaws can be corrected” through the adoption of “appropriate measures taken before the process comes to an end”.

The respondent referred to the WRC decision in An Employee -v- A Builders Providers (ADJ-00003058) where the claimant argued that his dismissal was procedurally unfair. The WRC found that the dismissal was not procedurally flawed, determining as follows:

“However, notwithstanding the concerns raised above in relation to the notification provided to the Complainant in relation to the disciplinary hearing, the evidence before me would suggest that,

from there on, the Respondent applied a careful and considered process, which meets the normal standards of fair procedure and natural justice. This is evidenced by the following:

The Complainant was provided with ample opportunity to respond and to make representations;

- The Complainant was given access to an appeal process.

- He was provided with the right to representation, which he exercised. He was accompanied at the disciplinary hearing by work colleague and at the appeal hearing by full legal representation.

Based on the above, I am satisfied that, with the exception of the amount of notice given for the disciplinary meeting, the Complainant was provided the fair and balanced process, in line

with natural justice.”

It is therefore submitted that, as per the Supreme Court in the Rowlands case, “precisely becauseprocedural problems can be corrected”, the claimant cannot reasonably argue that his dismissal was

procedurally flawed due to an issue at the consultation stage in circumstances where those concerns were addressed and corrected at the appeal.

It was submitted that the claimant’s failure to engage with the appeals process should be fatal to his claim for unfair dismissal;

It was further submitted that the claimant cannot reasonably argue that there were procedural flaws in the disciplinary process in circumstances where he did not engage in the appeals procedure.

 It therefore follows that the claimant cannot now reasonably argue that the redundancy dismissal process was procedurally flawed in circumstances where they did not see the process through to its

conclusion - namely the appeals process.

The Respondent referred to the EAT decision in Melinda Pungor v MBCC Foods (Ireland) Ltd (UD548/2015) where it was held that the complainant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal. The Employment Appeals Tribunal stated:

“The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce

any evidence that might justify her decision not to exhaust the internal process.”

Similarly, the Labour Court concluded in Aryzta Bakeries -v- Cacs (UDD1812) as follows:

“The Court also finds that there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so. For the reasons stated above and taking account of the failure of the Claimant to exercise his right of internal appeal, the

Court finds that the Claimant was not unfairly dismissed.”

Similarly, the Workplace Relations Commission concluded in A Sales Manager -v- A Manufacturing Company (ADJ-00023644) as follows:

“In relation to an appeal the Complainant decided not to appeal the decision to dismiss him. I believe this was a serious error of judgement on the part of the Complainant. In the case of An

employee v An employer (ADJ – 00000381; 12/04/2017) the Adjudication Officer commented as follows:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or

disproportionality of sanction’.”

Mitigation.

Should the Adjudication Officer find that the claimant was unfairly dismissed, which is denied, it is noted that at the time of lodging his claim on the 8th December 2020 the claimant had not taken up any alternative employment.

 It was submitted that the claimant has an obligation to mitigate his losses as per Section 7(2) (c) of the Act which states, “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— (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.”

The respondent referred to the case of Coad v Eurobase (1138/2013) in support of this position where the Tribunal noted, “In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not

meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co. Ltd. (US858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably

employed in seeking to mitigate his loss.”

The Claimant was invited to apply for a sales position in May 2020 but did not apply.

CA-00041112-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The holiday entitlement initially paid to the Complainant was incorrect and this has now been addressed.

CA-00041112-003 -  Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

At recruitment interview stage the Complainant was informed that should the Respondent organisation lose any of the product lines they were selling he would be given other product lines to replace them. This did not happen when the Respondent company lost the product line associated with Company 1.

On 20th July 2020 the Complainant was informed that his position was being made redundant and he was placed on Garden Leave until 20th October 2020 when he was dismissed by way of redundancy.

CA-00041112-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The holiday entitlement initially paid to the Complainant was incorrect and this has now been addressed. The Complainant accepts this position.

At hearing the Respondent stated that the Complainant was informed that if any product lines that he was selling were lost by the Respondent organisation they would be replaced by other products. Initially the Respondent denied that the Complainant was promised (at interview stage) that he would be kept on in employment if the product he was selling failed to sell and that he   be allocated alternative work, this was stated in the Respondent submission.

I note that the Complainant commenced employment in April 2019 and would have gone through the recruitment process prior to this date. This was at a time before the Covid 19 pandemic that has had a devastating affect on Irish businesses.

The definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by Redundancy Payments Acts 1971 and 2003.

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 –

a)      The fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

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 has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

d)      The fact that his employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

e)       The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

There are two critical factors to be gleaned from the definition above:

1.       The redundancy should arise from the doing away with the job, not the person. This feature of impersonality is necessary in a genuine redundancy situation.

2.       Any change must arise as a result of change in the workplace which might range from a closing down of the business to a simple reduction in number of employees.

In the instant case it should be noted that the current COVID 19 pandemic has impacted on the Respondent’s business to an extent when the product line from Supplier 1 was lost there was no alternative lines for the complainant to sell.

The redundancy was a genuine redundancy and for this reason I must declare that the complaint is not well founded.

As outlined above.

Redundancy.