ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030359

Parties:

Complaints:

Date of Adjudication Hearing:  22/06/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, or Section 8 of the Unfair Dismissals Acts, 1977 - 2015] following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

The parties were advised that arising from the Supreme Court judgement in the Zalewski v Adjudication Officer and WRC (2021) IESC 24 it is necessary for Adjudication Officers to implement certain procedural changes with immediate effect in relation to the conduct of hearings pending the introduction of the required legislative amendments to address the issues.

Therefore, I wish to confirm that the following procedural changes are applicable to the hearing of all complaints being heard now, even if they were lodged before the 6th April,21.

 In this regard, the parties should note that all adjudication hearings are now open to the public, other than where the investigation of the complaint does not amount to the administration of justice.

Furthermore, where a serious, direct conflict of evidence in the complaint before an adjudication officer emerges in the course of the proceedings, the Adjudication Officer will be obliged to adjourn the hearing to wait the require amendments of the Workplace Relations act 2015 and related enactments to grant the WRC the power to administer the \Oath or Affirmation.

No objections

Background:

The claimant was employed by the respondent from the 1st February 2016 to the 1st September 2020 as a Brand Manager. He was paid 2900 gross per month (€2500 net) The claimant had no contract of employment and he was Unfairly Dismissed.

Ca-00040503-001

Terms of Employment (Information) Act 1994(as amended)

 The claimant was employed from the 1st February 2016 to the 1st September 2020 and he stated that he was not provided with a contract of employment.

The respondent accepted that he had not provided a contract of employment to the claimant.

Findings

Section 3 —(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 or, if the contract of employment is for a fixed term, the date on which the contract expires,

F5[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

F6[(g) 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,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(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—

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

(ii) pensions and pension schemes,

(l) 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,

(m) a reference to any collective agreements which directly affect the terms and conditions of the 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.

 A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

 order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the complaint is founded, and I award the €1750 in compensation

CA-00040503-002

Unfair Dismissal

The respondent stated that the decision to close down the department as previously operated by the complainant was made only after significant discussion and consultation. This consultation included any number of discussions with the complainant in circumstances where he was made fully aware by the respondent of the catastrophic decline in sales figures. The complainant at no point sought to question the figures as furnished to him so as to make a business case to keep his department going and in fact the respondent with extraordinary forbearance given the fact that the complainant department had not reached a break -even point for upwards of three years.

The respondent is a small and medium Enterprise business. It employs 20 people and only 2 sales people. The respondent did not have any position available within the company which might have been suitable for the complainant. It should also be noted that two other positions within the company have also been made redundant.

Having discussed the situation with the respondent accountant, they were left with no option but to close down the complainant’s department in the interest of the enterprise as whole.  The selection of the complainant’s department for closure was and is fair and reasonable in the circumstances.

The complainant submitted that the respondent had a number of alternatives, short-term working arrangement, alternative position within the company, last in first out.

The complainant stated that he was entitled to under redundancy selection process nor was any company guidelines or procedures to what rights he was entitled to under redundancy selection, nor was any of this explained to him about company policy or procedures around his rights. The complainant stated that at no time was he spoken to about sales figures in the lead up to his redundancy selection, as there were not any targets set in place for his role or his brands in a contract of employment.

The complainant submitted additional information to support his argument.

The complainant also stated that he was not spoken to about his role. He stated that all the customers were shocked that he was not the company’s choice for this new role based on his role with a similar brand. The complainant was asked by the respondent to help with training and advice on the products to the person who was selected for this role.

Findings

I find the respondent accountant confirmed   the sales of the department and the accumulated losses that were occurring. The Complainant did not dispute any of the figures that were quoted at the hearing.

I find having examined all and listened to the various arguments that were put forward.

I find that the respondent should have been more upfront with the complainant when he spoke to him about the sales figures. I accept the argument that it could be a demotivator however in the circumstances the complainant did need to know the facts of the situation and he should have been made aware that if the sales did not improve that the respondent could not allow the situation to continue.

I find that had the complainant should have been made aware months earlier that if sales did not grow substantially that the company could not rule out the closure of the department.

It was evident that the respondent tried not to make the decision of redundancy until it was practically forced on him.

In all circumstances I find a redundancy situation did exist.

Decision

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In have decided that complaint was dismissed by reason of redundancy and his complaint falls.

Dated:   July 12th 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: