ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028238
Parties:
| Complainant | Respondent |
Parties | Kevin Treacy | Clonarn Clover Ltd. Clonarn Clover Free Range Eggs |
| Complainant | Respondent |
Anonymised Parties | Kevin Treacy | Clonarn Clover Ltd |
Representatives | Karl Carney, Karl M. Carney & Co. Solicitors | Sinead Finnerty, Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036102-001 | 11/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036102-002 | 11/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036102-003 | 11/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036102-004 | 11/05/2020 |
Date of Adjudication Hearing: 7/7/2021; 6/10/2021 and 17/11/2021
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/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).
Background:
The Complainant worked for the Respondent as a delivery driver from 5 June 2018 until his dismissal on 11 November 2019. In June 2019, the Complainant was involved in a road traffic accident while at work. Following a period that the Complainant was on sick leave and in the context of a down turn in business, in August 2019 the Respondent decided to restructure the way that deliveries were done and in doing so, reduced the number of delivery drivers from three to two. They contend that they selected the Complainant on the basis of a selection process of Last-In-First-Out (LIFO). The Complainant contends that the redundancy was a sham. He was the only worker to be made redundant and that his selection arose out of the road traffic accident and because he had made other complaints about health and safety breaches. Furthermore, he contends that he was replaced by another employee and was not the last person employed and he should not have been chosen. |
Summary of Complainant’s Case:
CA-00036102-001 Minimum Notice Complaint: The Complainant accepts that he was paid 2 weeks in lieu of notice, but contends that this should have run from the date of the appeal decision and not the date of the dismissal CA-00036102-002 T&C Complaint The Complainant received terms and conditions of employment in writing within 2 months of commencing the work. However, he did not sign the contract because he was told by HR that he did not need to because he would receive updated terms to reflect the requirements under Employment (Miscellaneous Provisions Act) 2018. He was never provided with an updated contract.
CA-00036102-003 Unfair Dismissal – The Complainant was made redundant on 11 November 2019. He contends that this was a sham because his position - as delivery driver –continued and the work that he did was still required to be done, after he was dismissed. His work/ delivery route was given to a third party, who was employed subsequent to the Complainant’s employment commencement. He disputes that that there was a diminished need for employees, and he also disputes the selection of him within a LIFO process. If LIFO was the selection process that was used and if anyone was to be made redundant it should have been the third party, not him. The fact that the third party was required to do some of the Complainant’s delivery runs, is proof that the work that he did had not diminished and in fact was still was required to be done. The Complainant was the only employee who was made redundant and, in such circumstances, the decision to select him, needs to be scrutinised to see if the decision was necessary or whether it was more likely a device to dismiss him and (given that his service was less than 2 years) not pay him redundancy pay. Under cross-examination the Complainant accepted that on 26 August 2019 he was offered voluntary redundancy which he refused, because he wanted to return to the job that he had been doing. It is the Complainant’s case that the real reason that he was dismissed was because he had raised health and safety concerns with management, he had raised pay issues with management, he had made mistakes when he initially started the job but received no training and through no fault of his own he was involved in a road traffic accident in June 2019. It was these reasons that the Respondent dismissed him – but in a way that caused them no cost. The Complainant contends that during his sick leave – for which he was not paid – he was informed by other employees that the son of the Managing Director (who was the Production Manager) initially took over his delivery route but soon thereafter his deliveries were passed to a third party, who started with the Respondent after to the Complainant’s employment started. When the Complainant returned from sick leave in August 2019 he was told by Management that, given the losses to the business, it had been decided there was a need for only two delivery drivers going forward, and that it was hoped that the oldest driver might accept voluntary redundancy (given that person’s age and the large redundancy payment that he would be entitled to), which could mean that the Complainant could keep his job. However, the Complainant was subsequently informed that the older driver wished to keep working. Then Respondent then offered the Complainant an alternative job in the production end, but he said that he wanted to have his driving job back and also the alternative position was not suitable because the production plant was 40 minute drive from his house. The Complainant was told at a later meeting, that a redundancy within the driver cohort was required to be made and that the selection would based on Last-In-First-Out (LIFO). He was told that because he was the last of the drivers to be employed, that he would be the first to be made redundant. He objected to this and said that he knew that a third party had been doing his delivery work since the Complainant’s sick leave and that clearly the work was still there. He did not accept that there was any requirement for the Respondent to make redundancies, given that the deliveries were still needed to be made. Furthermore, if someone was going to be selected, it should be the third party, not him. Management told him that the third party had been taken from the sales and merchandising team and in any event he was not an employee, but rather was a self-employed consultant. The Complainant asked why he could not do this role and Management informed him that he would need to have experience in sales and merchandising and have knowledge of sales trends, which the Complainant did not possess, which he denied. The decision to dismiss him was made on 11 November 2019 and the Complainant appealed this. The appeal took place on 3 December 2019 and was conducted by the owner of the business and the decision to uphold the dismissal/ redundancy decision was upheld. The impact on the Complainant by what he contends was eggregiously unfair treatment has been severe and he still feels very aggrieved about the disrespect shown towards him by Respondent management. It was wrong to treat him in this way given that he had worked so hard for the Respondent, often working long hours for which he was not paid, given that he was asked to do tasks for which he received no instruction or training and given that he was injured in a road accident (while he was at work). He went on sick leave from June 6th and was fit to work from August 2019 onward, however he did not return to work then and was not paid since. He was capable of returning to work from August onwards and produced a certificate to prove this, but he was not allowed to return because his work was being done by someone else. He was made redundant, but the position was not redundant. When the redundancy decision was made there were 4 drivers in total; the previous 3 drivers (of which the complainant was one) and the third party. The Complainant was not the last person to start his employment within this group of 4. The third party should have been the first out. During August – September – October 2019 when he attended the workplace of meetings, he noted that the third party had signed in to the workplace sign in book and his fellow workers told him that the third party was doing his delivery runs. CA-00036102-004 Unfair Dismissal – The second unfair dismissal complaint was withdrawn on the first day of the adjudication hearing, as it was a duplicate complaint with CA-00036102-003
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Summary of Respondent’s Case:
The Respondent is an egg business. It sells free range eggs and pasteurised egg white, egg yolk, and whole eggs in liquid form. Its customers are mainly bakeries and retail food businesses. The Complainant was employed as a van delivery driver. His job was to deliver product to customers and collect payment. From 2012 until late 2017 the Respondent, as the only liquid egg producer in the State, enjoyed a captive market. In late 2017 – 18 however, a competitor entered into the market and targeted the Respondent’s customers by using non- free-range eggs and under-cutting the Respondents on price. The Respondent started suddenly losing business to this competitor and from 1 June 2019- 20 July 2019 the Respondent lost two of its main customers which resulted in a loss of €40,000 worth of business within a 6-week period. This loss was dramatic and from that point onwards it became clear that the ongoing viability of the company was in doubt. This uncertainty for the business coincided in time with the Complainant going on sick leave in June 2019 following a road traffic accident that took place while he was working. During the Complainant’s period of sick leave, the son of the Respondent’s Managing Director, initially took over the Complainant’s deliveries. When he did so he realised that there were inefficiencies in the delivery system in place, the work was not well distributed between the drivers and the delivery routes sometimes overlapped. There was labour wastage in the existing system. It was the view of the Production Manager that there was only a need for two delivery drivers with intermittent occasional support. Arising from this, and due to the requirement to reduce costs at this time, management decided to restructure the way that deliveries were done and reduce the number of delivery driver to 2. This decision was taken before the Complainant returned from sick leave in August 2019. At the same time, because of the ongoing losses that the Respondent was incurring, salary savings were required to be made across the board. Cuts were made on the egg production side by reducing the working week for the machine operators and loaders. The drivers however were not agreeable to reducing their delivery routes or their working week. The HR manager had initially hoped that the oldest driver – who had been employed with the Respondent for 20 plus years – would opt to take voluntarily redundancy, but when this did not occur, a selection decision to make one of the drivers redundant was required. Having consulted with their HR/legal advisor the Respondent decided to use the selection process of Last-In-First-Out. Applying this criteria the Complainant, who had been employed by the Respondent for a year and three months, was selected to be made redundant. LIFO was objectively and transparently applied by the Respondent and the Complainant was offered a suitable alternative position (in the production plant) but he declined this offer. The alternative position was as a general operative and had similar hours and terms and conditions to the driving work, although it would necessitate the Complainant travelling a longer distance to work (a 35 minute journey.) Insofar as the Complainant contends that his position was not redundant and that a third party took over his deliveries, the Respondent refutes this. A third party was engaged by the Respondent (as a self-employed consultant - not as an employee) in March 2019. This party was recruited in order to stem the loss of customer haemorrhage that was occurring at this time. It is accepted that this third party did delivery work that the Complainant had done and that this started during the Complainant’s period of sick leave, however this was not the third party’s main task. He intermittently supported the delivery requirements that were, in the main, conducted by the two drivers. The third party had been engaged as a Sales and Merchandising advisor from March 2019 because of the competition that was impacting on the Respondents sales from February 2019 onwards. During the period running up to the redundancy decision, the Respondent had lost 56 customers but gained 10, suffering an overall loss of 46 customers. The customer losses were to the smaller shops which meant less deliveries and less driving time. Sales, merchandising and increasing the customer base became an immediate priority for the Respondent. It was important that the customers could meet someone who had the third party’s qualifications and experience in food retail sales/merchandising in order to encourage them not to end their contracts with the Respondent and/or follow the loss of business to the competitor company. All staff were very aware of these challenges from February 2019 onwards. When the Complainant went on sick leave in June 2019 the Respondent realised that only two drivers were needed in light of the loss of contracts and the Respondent took the decision to put a sales and merchandising person (the third party) on the road, so two drivers would cover the standard deliveries but when a sales/merchandising push was required or an opportunity arose to increase business with a particular customer, the third party could step in to do that delivery in order to sell the Respondent brand, give individual sales and merchandising advice to that customer and thus retain that business. The delivery service was restructured in a manner which the Respondent was entitled to do. Management denied that this was an attempt to get rid of the Complainant because he had an accident or because he had made health and safety complaints. This was a genuine redundancy situation, there was a diminished need for all three drivers to be employed as they had been. Ultimately this was proven by the fact that the entire business ended up being sold to the competitor in 2020. The Respondent does not accept that the Complainant could have done the sales and merchandising job that the third party took on. This was a different job, with different skills and different work experience - than the job that the Complainant had been employed to do. The Respondent had no difficulty with the Complainant’s work, which was always satisfactory. It is accepted that the Complainant voiced health and safety concerns, but he was not the first nor last to do this and that was not a consideration when the redundancy selection was made. The whole 2019 year was a difficult time for the Respondent. It was a family business that had been built up since 2012 and the loss of contracts to the competitor and ultimately the sale in 2020 of the Respondent’s company to the competitor was not easy. In respect of the T&C complaint, the Respondent provided the Complainant with a contract within 2 months of his commencement. In respect of the Minimum Notice Complaint, the Respondent paid the Complainant two weeks notice, even though the statutory notice due to the Complainant was only one week. The notice period ran from the date of the dismissal decision, not the Appeal decision. |
Findings and Conclusions:
As the second Unfair Dismissal complaint was withdrawn at Adjudication hearing, the three complaints that require an Adjudication decision are the Unfair Dismissal complaint, the Minimum Notice complaint and the Terms and Conditions of Employment (Information) Complaint. Unfair Dismissal Complaint I accept the evidence of the Respondent that from February 2019 on there was a downturn to their business caused by a competitor entering the liquid egg market. There is no evidence provided to counter this and I accept that in August 2019 at the time the decision was made to make the Complainant redundant the Respondent had lost €40,000 worth of business in six weeks (in June-July 2019) and had lost 46 customers to the competitor company. I am satisfied that the Respondent’s decision to cut salary costs across all its divisions, in light of the loss of contracts was justified. This took the form of agreed reduction in work hours (on the production side) and when a reduction in work hours could not be agreed by the three drivers, a decision to make one of the drivers redundant was taken. In my view the evidence supports the reasonableness of this decision and I am satisfied that as a result of the loss of business that the requirement of the Respondent to carry out work of a particular kind (deliveries) had diminished. Based on the uncontested evidence of down turn in the Respondent’s business - I am satisfied that a redundancy situation prevailed in August 2019. I am satisfied that the Respondent’s decision - to restructure the delivery work whereby two drivers did most deliveries, but that some deliveries (those required a sales push) were reallocated to a sales and merchandising consultant, who was not an employee but was (at the time the redundancy decision was taken) a self-employed contractor - was a decision that was justified. I am satisfied that these decisions were an attempt to keep the Respondent’s business afloat. I am satisfied that the Complainant did not have the requisite training or experience to do the sales and merchandising- focussed deliveries (although given that this role was performed by a non-employee is also relevant). I am satisfied that LIFO as the process to select the Complainant was objectively applied and that the Complainant was the employee who was last in. I do not accept that the last in employee was the third party, given that he was not an employee at the time the Complainant was made redundant. After the restructure while the work might have looked the same or similar, deliveries that were conducted thereafter were treated as sales promotion opportunities and this was other than how it had been under the Complainant’s time before he took sick leave. I accept that this plan to keep the Respondent in business necessitated a decision to make the Complainant redundant, and that this decision was justified at the time. Although as time would ultimately tell, this plan was not enough to save the business. I accept on the balance of probabilities that the decision to dismiss the Complainant was attributable wholly or mainly due to either that the requirements of the business for employees to carry out the work of a particular kind in the place where he was so employed had ceased or diminished (section 7 (2) (b) Redundancy Payments Act 1969- 2021) and that the Respondent decided that the work for which the Complainant had been employed was required to be done in a different manner for which the Complainant was not sufficiently qualified or trained (section 7 (2) (d) Redundancy Payments Act 1969- 2021.) The decision to make the Complainant redundant arose from the need to cut salary costs. I do not accept that the decision was taken because the Complainant raised health and safety concerns or because he was involved in a road traffic accident in June 2019. I accept too that the Respondent made attempts to ameliorate the impact that a job loss would have on the Complainant in that voluntary redundancy was offered to him (the terms of which were not disclosed at the Adjudication) and he was offered the only other job that was available, which was within the egg production side, which he declined. CA-00036102-003 For the above reasons I find that this Unfair Dismissal complaint to be not well founded. CA-00036102-001 The date of the dismissal is the relevant date for the purposes of notice, not the date of a subsequent appeal. I am satisfied – indeed it is accepted – that the Complainant received two weeks gross salary in lieu of notice at the time he was dismissed and that his statutory entitlement was only one week. For this reason, I find that he received his statutory notice and I find this complaint to be not well founded. CA-00036102-002 I am satisfied that the Complaint received a contract which complied with the obligations under Terms of Employment (Information) Act, 1994 within two months of the commencement of his employment. I am also satisfied that no written request for a Day 5 statement was sent by the Complainant to the Respondent under the Employment Miscellaneous Provisions Act 2018, which amends the Terms of Employment (Information) Act, 1994 and that no breach thereunder occurred under the amended Act. For this reason, I find this complaint to be not well founded |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00036102-001 For the reasons stated above I find this complaint to be not well founded. CA-00036102-002 For the reasons stated above I find this complaint to be not well founded. CA-00036102-003 For the reasons stated above I find this complaint to be not well founded.
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Dated: 30th November 2021
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Minimum Notice – Terms and Conditions of Employment (Information) – Unfair Dismissal – Allegation of false redundancy |