Complainant

Respondent

Parties

Michael  Bambrick

Boston Access And Boston Training

Representatives

Watch Your Back Ireland

 Peninsula Business Services Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00039057-001

06/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039057-002

06/08/2020

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

CA-00039057-003

06/08/2020

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-00039057-004

06/08/2020

The complainant withdrew complaint CA-00039057-002 under the Employment Equality Acts at the hearing.

The Claimant was not due to return to work until the 18th May 2020 largely due to problems related to the Covid-19 pandemic.

In advance of his return to work, the respondent requested a meeting with him by phone on the 15th May to explain the situation the company found itself in.

It was to be a socially distanced meeting in the Respondent’s office the following day, Saturday May 16th 2020, and was in consideration of concerns expressed by the complainant  of the potential health risks in the workplace. 

The complainant had a family member who was employed as Financial Controller for the Respondent who undertook to speak prior to him attending the May 16th meeting. This was to put him on notice of the situation he was facing.

On the day of the meeting the complainant was very hostile from the outset and refused to enter the Respondent’s office or sit down or engage in any meaningful way.

It was explained to the complainant that the meeting was an ‘at risk meeting’ which was to be one of three meetings and there would be ample opportunity to discuss the matter and the options open to the parties.

The complainant refused to accept the Respondent’s position, believed that the decision was final and said he did not see the point in a consultation process and that he would not be attending any further meetings.

The Respondent says that all options were open for discussion, including any suggestions the complainant had to make. It was committed to doing everything possible to find alternative roles that the complainant would be suitable for, and interested in.

In recent years the complainant as part of his role had agreed to being listed as Training Manager for a sister company and his attendance on a training course had been funded by the respondent in February 2020 as it was believed he would be in a position to take on this work in the future.

At the at-risk meeting on the May 16th 2020 he was informed of the possibility of his role as Yard Manager being redundant, that there would be a new role in the related Training company if he would be interested.

That new role would initially be part time but it was envisaged that in time it could become full-time.

The complainant said that he would think about the alternative training role and the meeting concluded.  He was also advised of another possible role in a separate company co-owned by the respondent.

This was also refused by the complainant.

He has alleged that he was contacted by the Respondent and requested to sign training documents during a time he was not working. The Respondent says that the initial purpose of this was to follow up in relation to whether he had thought more about the training role on offer.

The Respondent accepts that they did request the complainant to sign a wrap up document for a course that was held in the training centre before he was made redundant on the June 12th. He was told that he would be reimbursed for this.

The complainant remained on the TWSS until he found alternative employment.

The Respondent was contacted in early June 2020 and told that the complainant had found a new job.  On the June 12th the complainant was paid €8,000.00 and any annual leave owed.

The Respondent’s staff levels in the yard had decreased over recent years from eight employees to three since the focus of the company had shifted from sales and hire to contracts. 

This trend was predicted to continue into 2020 and 2021 which was exacerbated by the pandemic and the closure of most construction sites which resulted in the position of Yard Manager being made redundant.

The complainant had been in employment for five years up to recently. He was on temporary layoff during Covid-19 and despite other employees being returned to work during lay off, he was not among them.

When he was due to return to work, he arranged a meeting with his Managing Director to find out what Health and Safety provisions would be in force to cope with a return to work during the pandemic.

However, to his surprise he was advised that his position being made redundant on May 16th.

No consultation or selection process took place despite the fact that some of the role has been divided between remaining employees. In addition, he is the sole registered trainer for the Training Centre and as it has remained open, this role is clearly not redundant either.  

Since he was let go, he was asked to undertake other work for the respondent, and although he did not do it, this provides further evidence that his role was not redundant.

In relation to the lack of a redundancy process and it being clear that a full redundancy did not exist a single payment of around €8,000.00 was made to the complainant on the 12th of June.

The complainant is now sixty-two years of age and his prospects for finding another job are slim. He did not receive a breakdown of the payment he received, or a redundancy agreement, nor has an RP50 been produced for him to sign or file.

When he requested a letter for Social Welfare to confirm his redundancy, he was given a simple document stating the start and end date of his employment.  This is not a confirmation of redundancy and therefore his current record on social welfare is incorrect and could cause him an issue with any future social welfare claims.

At no stage was he issued any other official documentation. A request on the 23rd of July, 2020 directly to the respondent asserting that he had been unfairly dismissed and drawing attention to the lack of fair process was not acknowledged.

The facts are as set out above and there is little difference in the accounts of each party, except in respect of detail, although some it that is important.

Two main questions arise; the first, was the complainant’s position redundant, and secondly, did the respondent apply a fair process in selecting the complainant for redundancy?

The pandemic does play some part in the narrative, both in its impact on the respondent’s business, which is in the construction sector although the evidence was that this had been changing in 2019 and before the public health crisis, but it also plays a part in the process of engagement between the parties.

From the evidence of the respondent there is not much doubt that the business was experiencing trading difficulties. He took professional advice on initiating a redundancy process and was told to proceed.

There must be some question over whether the advice given extended to the management of the process itself, to judge from how the respondent approached it.

The meeting on May 16th is important. The respondent says it, somewhat informally through a family member who was also a senior employee, gave the complainant an indication of what was coming at the meeting.

This is far from the ideal way to commence a redundancy process and very unfair on the family member, who did not give evidence. The complainant initially thought he was attending a simple return to work meeting, then he discovered from his daughter that something more than that was on the cards and that he was to be made redundant.

It appears that when he turned up for the meeting the situation was very tense, to put it mildly.

He refused to enter the respondent’s office (largely to comply with public health guidelines) but he was aware that his redundancy was on the agenda. The respondent gave evidence that he did wish to retain the services of the complainant is some new, and rather unclear capacity, but that the complainant refused to engage either in the course of the meeting or subsequently.

The complainant more or less confirms this and agrees that he left the meeting ‘in haste’ and believed that the redundancy was a ‘fait accompli’.

The respondent says it was merely an ‘at-risk’ meeting and that he was open to the consideration of other options. Some of these options, it appears involved the engagement of the complainant in a self-employed capacity.

There was nothing in writing, either before or after the meeting. The respondent appears to have considered the use of the complainant’s daughter as an interlocuter to have met the requirements of notice.

I accept that the complainant appears not to have engaged subsequent to the meeting, but the clear and primary onus in such a situation falls on the employer to establish transparent processes to bring the matter to a business-like conclusion. He did not do so.

I do not fault the respondent for its initial informal approach via the complainant’s daughter which was possibly well-intentioned.

The conditions imposed by the pandemic probably then played a part.  The complainant arrived for a meeting which would be challenging at the best of times and was forced into the artificiality (for a business meeting) of the social distancing requirements which did not make for any rapport which might have eased the work to be done.

In the event, the complainant, somewhat unhelpfully, withdrew from the meeting and the process.

While this did not make things easy for the respondent, and I bear in mind that he had access to professional advice, his failure to put the process on a formal footing after that is significant in reaching a finding that the process did not comply with the obligations to conduct a fair process.

In this submission the respondent leaned heavily on the fact that the termination was due to ‘a genuine redundancy’ and that this had been under consideration since February, three months earlier.

I accept that on the facts of the trading situation set out as being experienced by the respondent this was probably true and that this was not a dismissal ‘under the cloak of redundancy’.

The complainant relied on a number of requests made to him to undertake various functions as evidence of the fact that his position was not redundant.

Section.7(2) of the Redundancy Payments Act 1973 (as amended) sets out a number of situations in which a redundancy can arise and I am satisfied that the proposed redundancy in this case fell within them.

However, this will not in itself be sufficient to rebut a complaint of unfair dismissal unless the procedure followed meets the standard of being fair. That is the standard to be applied in the circumstances of any termination of employment.

Specifically, in this case, even if the meeting of May 16th had been an ‘at risk’ meeting there were clear and obvious stages required to follow this, before the somewhat inadequately explained cheque was sent to the complainant as his redundancy payment. (The lack of detail in relation to this cheque seemed to exercise the complainant almost as much as the redundancy itself).

In particular, there was no evidence that the process moved, or specifically when or how it moved from being ‘at risk’ (whether or not it was seems to be in doubt) on May 16th to a final decision to make the position redundant.

In relation to the consideration of alternatives, again while the respondent may have been well-intentioned, the option of becoming a self-employed contractor is not an alternative to a proposed redundancy (although there was also some suggestion of part-time work).

An alternative to redundancy is one which is reasonable and obviates the need for that redundancy and the respondent accepted that the redundancy would still proceed, and a payment be made.

The failure to find alternatives is not, of course, decisive, and the efforts made in this case represent evidence of some good will towards the complainant.

Also, however obvious it may have appeared to the respondent that the complainant was the person most likely to be selected for redundancy, this will not liberate them from the requirements to actually conduct and document a process which shows that they objectively considered all aspects of the matter.

The complainant’s failure to engage did not help matters but redundancy is a traumatic experience. Any worker facing it can be forgiven if his judgement of how to react to, and manage his way through it falls below the levels of detachment and calm reasoning that might be expected in a less fraught situation.

The fact remains that between May 16th and the giving effect to the redundancy there was no evidence of any process of engagement that meets the standards of a fair process and this renders the dismissal unfair.

A particular onus falls on a complainant to mitigate their loss.

Subsequent to the hearing evidence as submitted of the complainant’s efforts to do so.  His salary with the respondent was €40,000.00 per annum. His losses attributable to the dismissal were stated as being €18,387 in year one and €30,119 in year two. The Act provides for a maximum of two year’s salary in respect of losses attributable to the termination.

In 2020, there was one application in May, two in June, one in July, and one in November.

In 2021 there was one in January. (The hearing was on May 5th). I take full account of the difficulties presented by the pandemic, but four applications in twelve months falls considerably short of the onus set by the Labour Court by some way and is a factor in my decision below.

A fully documented statement of the breakdown of the payment made to the complainant was also provided after the hearing.  The element paid in respect of statutory redundancy was €6,600.00 and a gratuity of €1200.00 as added bringing it to €7,800.00. (Other statutory payments were made separately, and detail was provided)

In other circumstances, a fair and equitable award would be €17,500 in total.

I discount this by the amount already paid in respect of the redundancy (€7,800) and also further discount it to take account of the failure by the complainant to adequately mitigate his loss. This results in an award of €5,500 in total in respect of complaint CA-00039057-001.

Complaint CA-00039057-002 was withdrawn at the hearing.

In respect of complaint CA-00039057-003 the notice payment was correct based on the complainant’s service (which was rounded up to five years for the redundancy calculation only).

Complaint CA-00039057-004 was erroneously entered and may have been intended as a complaint under the Terms of Employment (Information) Act. However, no evidence was offered to support the complaint.

Complaint CA-00039057-001 is well-founded and based on the calculations set out above I award the complainant €5,500 in total in respect of his losses attributable to the dismissal.

Complaint CA-00039057-002 was withdrawn at the hearing.

Complaints CA-00039057-003 and 004 are not well founded.