ADJ-00030174

Complainant

Respondent

Parties

Rory  Branagan

K & G Civil Engineering Ltd

Representatives

  N/A

Tracey Loughran The HR Elephant

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-00040480-001

19/10/2020

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

CA-00040480-002

19/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040480-003

19/10/2020

The Complainant commenced employment as a Groundworker with the Respondent on 7 January 2019 and was paid €779.50 per week. He is alleging that he was unfairly selected for redundancy by the Respondent.

The Complainant stated that he was given no reason for his dismissal and highlighted that he was the only one of the Respondent’s employees placed on temporary lay-off on 30 March 2020 who was not brought back to work. He also stated that all of the subcontractors were re-engaged and outlined the many attempts he made to contact the Respondent to see if there was work available for him.

The Respondent stated that one of the directors contacted the Complainant at the end of March 2020 to advise that all sites on which they operated were being closed due to Covid 19 restrictions and that he, along with all of the other employees, were being placed on temporary layoff. Further to this call, the Respondent again made contact with the Complainant on 20 April 2020 and advised him that there was a requirement for six workers, including him, on a client site. Having subsequently been informed by the client that there was only a requirement for four workers, the Respondent contacted the Complainant and informed him he would no longer be required on that site. It was also communicated to the Complainant both that there was no realistic prospect of other work in the foreseeable future and he should start seeking work elsewhere.

CA-00040480-001

In reaching my decision on this complaint, I have reviewed the relevant provisions of Section 6 of the Unfair Dismissals Acts 1977 to 2015.

Specifically, Section 6(1) provides that a dismissal is unfair “unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”. It is the Respondent’s case that the Complainant’s position was redundant due to a downturn in work as a result of the pandemic and that he was fairly dismissed on these grounds. The definition of redundancy, as set out in Section 7 of the Redundancy Payments Acts is the starting point for a consideration of the Respondent’s position and Section 7 (2) sets out five definitions of redundancy:

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 had 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 had 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,

The Respondent’s position is that the redundancy of the Complainant’s position was required due to a downturn in work as a result of the pandemic and the fact that the Complainant did not have the skills required to fulfil the roles that were available when work resumed on 20th April 2020.

I must also however have regard to the provisions of Section 6(7) of the Act (as amended) in relevant part as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour 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

and must consider whether, notwithstanding the fact of the alleged redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable. In making a decision on this, I have examined the process surrounding the notification of redundancy and whether or not there was a meaningful consultation process wherein alternatives were explored.

I note firstly that, according to the sworn evidence of the Respondent’s directors, the Complainant was telephoned on 24 April 2020 and was informed that he was being dismissed on the grounds of redundancy because there was only four workers required back on the client site and not six as had originally been envisaged. In light of this evidence, I am satisfied that there was no consultation process whatsoever, no alternatives were explored with the Complainant and that he was not retained on temporary lay off after 24 April 2020 to see if the Respondent’s workload would increase, which I note it did, and that other workers were brought back after this.

There is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. This decision was consistent with the findings of the Labour Court in the matter of Ahmad v Trinity College Dublin UDD2030.

As well as the failure to adequately consult and engage with the Complainant and to offer him any work which arose after his dismissal, I also note that there was no avenue of appeal provided to him. Such a process could have given him the opportunity to defend his future employment and highlight his willingness to work in alternative roles. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, it would appear that the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner.

Having considered all matters put before me, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015 and that his complaint in this regard is well founded.

CA-00040480-002:

THE LAW

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)      the full names of the employer and employee;

b)      the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)       in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)      the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)       the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normal working week.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS

It is the Complainant’s position that he did not receive any written statement of his terms and conditions of employment as required by the Terms of Employment (Information) Act 1994 outlined above. At the hearing, the Respondent agreed that this was the case, when questioned by me and I therefore find that this complaint is well founded.

CA-00040480-003:

Section 4 of the Minimum Notice & Terms of Employment Act, 1973

Minimum period of notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

It is the Complainant’s position that he did not receive his minimum notice payment in accordance with s. 4 of the Act set out above. In the absence of any evidence having been presented by the Respondent to suggest that he had received this payment, I find that his complaint is well founded.

CA-00040480-001

Having found that the Complainant was unfairly dismissed, I must decide on the appropriate remedy.

Section 7 of the Unfair Dismissals Act, 1977 (as amended) covers the subject of redress and reads as follows:

7.(1) Where an employee has been dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following (adjudication officer or the Labour Court), as the case may be, 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 or

(c) (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

In deciding on the appropriate remedy, I note that the Complainant is currently unemployed and is actively seeking employment, that he had a clean work record with the Respondent and was in no way at fault for his dismissal.

I also note both the egregious conduct of the Respondent in relation to the dismissal as highlighted above and that there was work available for the Complainant soon after his dismissal which the Respondent should have offered to him.

Accordingly, I find that the Complainant should be re-instated by the Respondent from the date of his dismissal, namely 24 April 2020, on the terms and conditions on which he was employed immediately before his dismissal and that all remuneration which he would have earned since his dismissal should therefore be paid to him.

CA-00040480-002:

In making a decision on what compensation to award in respect of this complaint, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant 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 the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes 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 within case. I therefore award the Complainant compensation of four weeks remuneration, namely €3,118.

CA-00040480-003

I find that the Complainant should be paid one week’s notice in the amount of €779.50 in respect of this complaint.

Unfair selection for redundancy; no consultation