Complainant

Respondent

Parties

Eamonn  Kavanagh

Compass Catering Services Ireland Ltd.

Representatives

Thomas Cummins HR Consultant

Aleksandra Tiilikainen  Ibec,  Correna McMullan, Elaine Grimes, Eve Bridges

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-00040912-001

10/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040912-002

10/11/2020

The Complainant was employed as Head Chef from 11th September 2000 to 11th September 2020. He was paid €771.81 per week. He has claimed that he was unfairly selected for redundancy and is owed holiday pay.

The Respondent has rejected these claims.

The Complainant alleges that he was unfairly dismissed by reason of selection for redundancy. The Complainant also alleges that he was denied a long service payment and that he did not receive payment for 8 days of annual leave for which he was entitled to. The Respondent has fully complied with its obligations under the Act and rejects that there has been any breach of the Complainant’s rights under this legislation. The Respondent’s decision to select the Complainant’s role for redundancy was fair and appropriate and was based on objective and agreed-upon criteria, having regard to all the circumstances and as provided for under statute. At all times, the Respondent followed fair procedures in terms of the redundancy process.

Background 

The Complainant was transferred to the Respondent company on 1 September 2013. The Complainant was employed as a Head Chef. The Complainant was paid a gross weekly wage of €771.81 and was contracted to work 39 hours per week. On 24 August 2020, due to the effects of the Covid-19 pandemic on the Respondent company’s business, the HR Manager, held a Town Hall meeting with all of the employees who had been placed at risk of redundancy. A PowerPoint presentation was used to detail the business case for the restructuring, the current and proposed structure, what this meant for the employees concerned, next steps, and what the employees concerned should do next. It was explained that all employees needed to be returned from lay-off in order for a meaningful consultation process to begin (it is important to note that the Complainant had not been placed on layoff – the Complainant had been working reduced hours while on the Wage Subsidy Scheme). Next, the business case for the restructuring was discussed – pre-Covid, the yearly revenue/sales figure was €721,000. This figure was forecasted to fall to approximately €288,000 post-Covid, due to the impact of the pandemic on the Respondent’s business. Staffing needs were also set to fall, due to reduced opening times and food offerings, along with reduced footfall, all of which had been forecasted by the Respondent. These forecasted changes necessitated a review of the existing structure, and a proposal for a reduction in roles in certain areas.  All teams affected were informed that they were being put at risk of redundancy and that they would receive a confirmation letter via e-mail.  The existing structure in each unit was explained – one Unit Manager, one Head Chef, the Kitchen Team, the FOH Team and the Coffee Bar Team (a headcount of thirteen in total per unit, with three employees on each team). It was proposed by the Respondent that the headcount on each unit be reduced to seven, as follows – one Chef Manager, Kitchen Team, FOH Team, Coffee Bar Team (a headcount of seven in total, with two employees on each team). All employees at risk were informed that the Respondent would work to secure suitable alternative roles for them and review alternative options. Employees at risk were informed that they would be consulted about ways in which redundancies might be avoided/reduced, the possibility of alternative roles and redeployment and their suggestions or alternatives to the proposal (all of which would be considered). Employees at risk were encouraged to consult on the above matters during the consultation process, and the Respondent committed to listening to their views and responding to same. Next steps were discussed – the Respondent informed employees at risk that they would be receiving a confirmation letter and reiterated the importance of engaging in the consultation process as outlined above. Finally, employees at risk were encouraged to seek support from the EAP if they required assistance, and also were encouraged to monitor the Respondent’s ‘vacancy list’, published once per week, which would include details on the proposed roles, plus any other roles, that could be applied for. The Respondent also offered to circulate this list to employees at risk if they so required. On 24 August 2020, the Complainant was placed at risk of redundancy and was invited to an individual consultation meeting with his line manager, the letter stated that the Complainant was being recalled from layoff in order to begin a meaningful consultation process – this was a clerical error – the Complainant had been working reduced hours while on the Wage Subsidy Scheme. Confirmation of Role at Risk of Redundancy and Invitation to Individual Consultation Meeting .Strictly Private and Confidential. The reason for the restructuring exercise was explained to the Complainant (the negative impacts of the Covid-19 pandemic on the business). The Complainant was not required to return to work on-site but was asked to be available to attend any meetings that his Manager or Employee Representative might require him to attend. • The Complainant was asked to contact the DEASP to inform them of his recall from layoff and so, to cease receiving the Pandemic Unemployment Payment. He was also informed that he might be placed on the EWSS depending on his eligibility (this was a clerical error in the letter – the Complainant had been on the TWSS since early April and was switched to the EWSS on 3 September 2020, while others had been on the PUP since early April and remained on same until the consultation commenced). The Complainant was informed that the Respondent would carry out a 15-day consultation process from 27 August to 11 September 2020 and that any possible redundancy decision would not be made until 11 September 2020. The Complainant was informed that the individual consultation meeting would be held and scheduled by the Complainant’s Line Manager and was informed of what would be discussed at this meeting (the impact of the proposed restructuring on the Complainant and any possibility for job losses to be avoided or reduced). The Complainant was informed of his right to be represented by a work colleague or a trade union official at the meeting. The Complainant was informed that he would be able to ask questions and make suggestions at the meeting, in connection with the restructuring proposals, and that these suggestions would be carefully considered by the Respondent. Lastly, the Complainant was encouraged to avail of any assistance he might require due to the difficulty of the situation (through the Employee Assistance Helpline) and was encouraged to put any questions he might have had to the HR Manager. On 26 August 2020, at 14.30, an individual consultation meeting was held with the Complainant. The meeting was supposed to be held by his Line Manager however at the last moment the HR Manager had to step in and lead the meeting. The Unit Manager was in attendance as a note-taker.  Individual Consultation Meeting. It was explained to the Complainant that the Covid-19 pandemic and its effects on the business were reason for the restructuring that would take place. It was explained to the Complainant that the Respondent had explored alternatives to redundancy in terms of the Complainant’s situation and suggested to him that he might apply for the role of Chef Manager, an alternative role for the Complainant. The Complainant asked some questions about the proposed role and the HR Manager suggested that he speak to his Line Manager in detail about the role to understand what the role involved, especially the aspects of management which wouldn’t necessarily be covered in the Complainant’s role. The HR Manager asked the Complainant to specifically inform her if he was interested in the new position. It is important to note that the Complainant made no contact thereafter with the HR Manager about this role, neither he contacted his Line Manager seeking further information. It was explained to the Complainant that this individual consultation meeting, in effect, was the commencement of the consultation process. On 11 September 2020, a meeting was held with the Complainant, in order to notify him of the redundancy decision. The meeting was led by his Laine Manager with the Complainant in attendance, along with a unit manager in the role of note-taker. The Complainant did not avail of his right to bring a representative to the meeting. His Laine Manager served notice of the redundancy to the Complainant at this meeting. The Complainant’s date of dismissal/date of redundancy was confirmed as 11 September 2020. The Complainant’s notice period was confirmed as 8 weeks effective from 11 September 2020 (there was a clerical error on the form – the Complainant was in fact paid 8 weeks’ notice). The amount of statutory redundancy was confirmed as €24,800.55. The amount of notice pay was confirmed as €6,402.00. The Complainant confirmed his right to appeal to the HR Manager.  It was stated on this form that the Complainant had not been offered an alternative position. This was a clerical error – as described above the Complainant was encouraged to apply for the role of Chef Manager by the HR manager in the first individual consultation meeting. The Respondent’s requirement for a reduction in service (less staff) was confirmed as the reason for redundancy. His Line Manager and the Complainant signed and dated the redundancy notification form. On 17 September 2020, the HR Business Partner sent a follow-up letter to the Complainant, to issue confirmation of the redundancy. It was confirmed that the Complainant’s position as Head Chef was made redundant on 11 September 2020, and that his employment had terminated on this date. The Complainant was informed that he would receive a redundancy payment, calculated in accordance with the Redundancy Payments Acts 1967 to 2014, based on the Complainant’s 20.16 years of service. The Complainant was informed that his notice period was 8 weeks, commencing on 11 September 2020 (the date of termination) and that he was not required to work the notice period. The Complainant was informed that the Payroll Department would arrange for the payment of any outstanding monies owed to the Complainant. The Complainant was informed of his right to appeal against the decision and that he had 5 days to make an appeal in writing from the date of the receipt of the letter. Lastly, the Respondent commiserated with the Complainant that this redundancy had come to pass, thanked the Complainant for his many years of service and wished him well for the future. No appeal was received in relation to the redundancy.

Respondent’s Position Claim under the Unfair Dismissals Acts 1977-2015

The Complainant has alleged that he was unfairly selected for redundancy due to not being afforded his rights in relation to the process. The Complainant also alleges that he was given no opportunity to apply for other roles, and that he was passed up for a position he would have been suitable for, which was given to another employee who had previously reported to him. The Complainant also alleges that there were a number of written correspondences that were issued to him by the Respondent which were not complied with and that he was advised in writing of the redundancy decision on 17 September 2020 whereas he was in fact made redundant on 11 September 2020. The Respondent refutes these allegations in their entirety as the redundancy process was procedurally fair. The Complainant was put at risk of redundancy on 24 August 2020 and was given the opportunity to engage in consultation with the Respondent until the position was formally made redundant on 11 September 2020. Through the consultation process, the Complainant was afforded the opportunity to apply for a newly-created alternative role. He did not apply for this role, and for this reason, the role was given to another applicant who had in fact applied for this role. The Respondent followed up in writing on 17 September 2020 to confirm the redundancy decision but asserted that the date of redundancy was in fact 11 September 2020. All of the Complainant’s rights in natural justice were respected, i.e., his right to representation and his right to appeal.

Selection for Redundancy: Section 6 (3) of the Act outlines the following: “(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either — (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.” In applying the abovementioned extract of the Act, an employee may contest a dismissal due to the redundancy if: the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer; or their selection contravened a procedure/custom and practice in relation to selection for redundancy and the Respondent had no special reasons to depart from the procedure or practice. The onus is on the employee to establish that the circumstances constituting the redundancy applied equally to one or more other employees in similar employment who have not been made redundant. In defining “similar employment” the Employment Appeals Tribunal has held that employees, who are in a singular or unique position, cannot claim unfair selection for redundancy. Thus, for a claim to succeed it must be shown by the employee that there were one or more employees doing the same or similar work as the redundant employee who have not been made redundant. This point was illustrated in the case of Cruise v Nugent Manufacturing UD 2099/09  where the appellant was unable to point to any other manager or person ‘in similar employment’, to whom ‘the circumstances constituting the redundancy applied equally’. The appellant was advised that he was to be made redundant with one month’s notice and said there was no prior discussion or consideration of alternatives. The EAT considered whether “the circumstance constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed”. The appellant was unable to identify any other relevant manager or person affected and therefore the EAT did not uphold his appeal. In the instant case, the Respondent submits that the Complainant must point to another person ‘in similar employment’ to whom ‘the circumstances constituting the redundancy apply equally’.  The Respondent does not have an agreed procedure between the company and trade union or employees but as a custom and practice if the new role is to be created an employee at risk of redundancy is required to express an interest in the new roles available. If no interest is expressed, the company undertakes recruitment exercise. If however, there is a requirement in reduction in current roles and no new roles are created, LIFO would be normally used. The Complainant was informed about the new position and was asked to contact line manager to discuss the details of it and then contact the HR Manager if he wished to apply for the role. He did not do so. Without prejudice to the above, if Adjudicator finds that deviation from a previously agreed selection method took place, the Respondent relies on the fact that sound reasons for doing so must be communicated to affected employees. In the case of McCarthy v Damovo Ireland Ltd, UD 1161/2011 (Appendix 12) a process of matrix assessment and selection in order to retain specific skills was applied. This was found by the EAT to be sufficiently objective. In addition, and notwithstanding that the previously agreed selection by LIFO was not applied, the redundancy terms were accepted in a union ballot. The Respondent, in the instant case, similarly had sufficiently objective reasoning to depart from its usual selection method and communicated this reasoning to all of the employees put at risk of redundancy. In each unit across the Respondent’s business, the two roles of Unit Manager and Head Chef were no longer required, due to decreased forecasted revenue. In this way, both of these roles were amalgamated in each unit to create the new role of Chef Manager. All of the other Head Chefs in each unit (much like the Complainant), were also put at risk of redundancy, and all employees at risk were given the opportunity to engage in the consultation process and apply for new roles as they came up. Where possible, the Respondent uses ‘Last In, First Out’, though not exclusively as explained above. The proposed new structure and the reduction of staffing would mean that retaining both a Head Chef and a Unit Manager would not be feasible. Neither was the Respondent in a position to retain only a Unit Manager, or only a Head Chef. Recently, the Respondent undertook a similar restructuring exercise on a different site of a similar size – a ‘Chef Manager’ role was created, and both the displaced Head Chef and Unit Manager were asked to consider the hybrid position and apply for the new role. It would have been inappropriate and unfeasible to simply place the Complainant into the new ‘Chef Manager’ role, as this was not a suitable alternative role, i.e., the new role and his former role of Head Chef were not ‘like-for-like’ job descriptions supplied. If LIFO had been used in each unit – employees at risk may have been placed in newly-created/amalgamated roles for which they were not qualified. The Complainant did not have managerial experience and had never managed other employees in the role of Head Chef. The role of Chef Manager involved a sizeable amount of administration and people management – therefore, it was necessary for the Complainant to apply for and be assessed for this role. The new hybrid position was discussed with the Complainant at the consultation meeting and he was given the appropriate information and opportunity to apply for same. Reasonableness: Section 6 (7) of the Unfair Dismissals Acts 1977 to 2015 states: “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 (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7 (2) of this Act.” It is submitted by the Respondent that it behaved reasonably and satisfied section 6 (7) of the Unfair Dismissals Act in the steps taken by way of meetings and correspondences with the Complainant. The Respondent also relies on the judgment of Kohinoor Ltd v Hussain Ali, UDD1629. The Court found in favour of the Respondent. The first thing to be identified was whether or not there was a genuine redundancy and if redundancy was the main reason for dismissal. The Court was satisfied that the Respondent decided to carry on its business with fewer employees due to the changes taking place in the business at the time. Therefore, the Court found that there was a genuine redundancy within the meaning of Section 7(2) (c) of the Acts. The Court was satisfied that the Respondent devised a very detailed selection matrix to decide on the criteria to be used to select those to be made redundant and were satisfied that the criteria were objective and fair. Furthermore, the Respondent engaged in fair procedures by consulting with all affected employees before any redundancy was decided and found that it had effectively justified why the complainant was selected for redundancy. The Respondent engaged in a consultation process with the Complainant. It was only until all possible alternatives to redundancy were considered, including seeking suitable alternative roles, that a decision was made to confirm the redundancy of the Complainant’s role. This included the individual consultation meeting that was held on 26 August 2020, at which the Complainant was asked to speak to his Unit Manager/HR Manager about the Chef Manager role. This was an alternative role for the Complainant. The Complainant, thereafter, made no efforts to contact his Unit Manager or HR Manager about this role and made no efforts to apply for this role either. Without prejudice to the Respondent’s contention that it acted reasonably during the consultation process, and the process was not abrupt or inappropriate, if for any reason the Adjudication Officer finds that the manner in which the redundancy was conducted was unfair, the Respondent relies on the judgment of the EAT in Torley v Omni Park Shopping Centre Consortium UD1745/2010. The EAT held that the Claimant was fairly dismissed, although the dismissal was ‘very abrupt’: “The Tribunal has considered the case of the Danninger and Danninger Ltd v Philip Preston UD342/2008 and holds that the termination of an employment in a sudden or abrupt manner does not of itself transform what would otherwise be a redundancy into an unfair dismissal. The selection of the claimant for redundancy can be distinguished from Danninger as the decision was not arbitrary but was based on the business needs of the respondent to discontinue this role and no other employee performed the role which was to be eliminated”. The Respondent submits that similar circumstances apply in the instant case. The decision to dismiss the Complainant was not arbitrary but was based on the business needs of the Respondent to discontinue the ‘Head Chef’ role, and no other employee in the 13-person unit performed the role which was to be eliminated. This was also confirmed in the case of White v Yenom Limited (UD/993/2009) (Appendix 15), where the Tribunal found that even where there was a full lack of a consultation procedure, the claim of unfair selection and unfair dismissal failed, due to the genuine reason for redundancy. 5.17 The Respondent refutes that the Complainant was unfairly selected for redundancy and contends that the redundancy was solely a cost-cutting measure. It was the role, and not the person, that was made redundant. Loss of Remuneration: 5.18 Without prejudice to the Respondent’s position that there was no unfair dismissal within the meaning of the Unfair Dismissal Acts, the Respondent is aware that the Complainant began working for a new company less than one and a half months after his dismissal – on 28 October 2020 . Section 7 (2) (c) of the Unfair Dismissals Acts 1977 to 2015 states that: “ (2) ....in determining the amount of compensation payable ... 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… “ Given that the Complainant began working for a new company within approximately one and a half months of his dismissal, the Respondent submits that minimal loss has been incurred. The Complainant will need to put forward a statement of loss to show otherwise, including his efforts at further mitigating his loss. Furthermore, if any compensatory award is to be made to the Complainant, please note that the Complainant received a redundancy payment of €24,800.55. The Respondent requests that this amount is taken into account when considering any potential award.

Conclusion it is the Respondent’s position that the dismissal of the Complainant due to redundancy cannot be deemed to be unfair as the process utilised was fair and reasonable. The Respondent respectfully request that this claim fails. Based on the detailed arguments above, the Respondent respectfully requests that this claim is dismissed in its entirety.

The Claimant in these proceedings, had worked diligently in the catering business for over 35 years. From the year 2000 the Claimant has worked for the Respondent Company and was employed as a Head Chief from the commencement of his employment in September 2020. It should be noted that the employment transferred to the Respondent company. The Claimant was deployed as Head Chief at one of the Respondent’s Client Organisations. The Claimant had long service with the Company and had secured reasonable terms and conditions of employment through the earlier TUPE. As well as his long service with the Company the Claimant rarely, if ever missed a day’s work and immediately prior to Covid, at his most recent employee evaluation it was recommended his next move would be to Chief / Manager. The Claimant’s gross weekly pay at the time of his dismissal from the Respondent Company was €771.81 gross per 39 hour week.

The Claimant fully recognises and accepts that Covid 19 had a catastrophic impact within the industry that has employed him for 35 years and that his employer Compass Catering Ltd, was not immune to these terrible turn of events. However, and notwithstanding this, it was at all times the reasonable expectation of the Claimant that his employer would ensure that his rights under employment law would be both observed and preserved by his employer. The Claimant respectfully insists that these basic employment law obligations, under both the Redundancy Acts (in terms of the fair execution of a redundancy) and the Unfair Dismissals Act (in terms of fair procedure) were not observed by the Employer – Respondent in this instant case. The evidence that will be provided by the Claimant one can clearly deduce that what the Respondent engaged in was a box ticking exercise to disguise the unfair dismissal of the Claimant.

Narrative of Events Leading to Dismissal “First Individual Consultation Meeting – [ employee at risk]” took place between the HR Manager and the Claimant on August 26th, 2020. Based upon the shared minute on the meeting the following was discussed and committed to:  The item in the minutes relates to a possible alternative role of a 9-month fixed term contract however this role was not subsequently advertised. There a follow up second meeting would take place the following week, on a date to be determined. – this second meeting was not arranged and never occurred. no “feedback was requested for the next meeting” and there was no “next meeting” in any event. “Complete with the employee their details and what positions (Inc. locations/pay/hours) the would like to be considered for”. At no time was this discussed.  “Agree a date for the next consultation meeting – Second Individual Consultation” Again this second consultation meeting never occurred”. At said meeting on of August 26th when the Claimant first became aware of this situation it was explained to him by the HR Manager that “All roles will be sent to you”. Again this did not happen. At said meeting (August 26th). The Claimant was clearly of the understanding that the decision as to whether or not he would become redundant was down to his choice, when he asked “when do you want my decision”. For the avoidance of doubt the decision to make the Claimant redundant had already been made as will be evidenced later. Further and for the avoidance of any doubt, it should be noted that the actual compulsory redundancy of the Claimant was executed just 16 days later on September 11th and without any formal notice. Attachments showed that the only effort made by the Respondent in relation to fulling their statutory obligation to seek and best establish alternative employment for the Claimant was the potential of positions as a Cleaner in a Clonmel, Co. Tipperary, or a Coffee Serving Role in either Dublin or Limerick. It should be further noted that said roles were issued to a group of employees on August 28th, two days after the above “First Individual Consultation Meeting” and taking absolutely no account or regard of the Claimant’s senior role and skills. Again, it is submitted that this demonstrates that the Respondent was going through a grotesque box ticking redundancy exercise in order to reduce business overhead, as opposed to any form of procedure, fair or otherwise. A further email was issued by the Respondent on September 5th (6 days before the execution of the dismissal of the Claimant). The message on said email is “I will not be including this week’s vacancy list. Basically it’s the same as the last one and of no use to anyone” At this point, the Claimant wishes to state that shortly after he was dismissed under the false application of the Redundancy Act on September 11th 2019, the person that had reported to the Claimant at the Respondent organisation was promoted into a new role. This new role was not advised or disclosed to the Claimant and so he was given no opportunity to apply for same, contrary to the provisions of said the Redundancy Acts. e “Redundancy Notification Form (F1)”. This form (F1) and the statutory context of it relates to formal notice of dismissal by way of redundancy. The Claimant wishes to highlight a number of very disturbing aspects of said process contained within said Form (f1) was applied by the Respondent. Firstly and as stated, said Form relates to the statutory formal recording and record of the notice to dismiss by way of redundancy. The Claimant submits that there was no actual notice whatsoever, formal or otherwise applied, and said Form was actually signed by the Claimant on September 14th and retrospectively dated to September 11th when the dismissal took effect. It would appear the Respondent may have been of the mistaken view that once minimum notice is applied in lieu on the date of the actual dismissal then any earlier notice of termination or application of fair procedure is not required.  For the avoidance of doubt and as can be seen on attached Form (F1) the “Date of Notification Meeting (Date Notice of Dismissal is Served) is 11/9/20. It is therefore a matter of fact that the statutory notice of dismissal took place on the actual day of dismissal. Notwithstanding the seriousness of such an occurrence, in actual fact formal notice issued by way of the F1 Form three days after the dismissal. Therefore it is a matter of fact that statutory notice actually issued and took effect after the event. This is a most serious breach statutory obligations and displays a gross disregard to both the related protective legislation that applies and more importantly to the employee (Claimant) of 20 years unblemished service.  Notwithstanding the single so called “Individual Consultation Meeting” of August 26th and the stated commitment from the Respondent to further meetings and job opportunities to be listed on the job portal, no such jobs were published and no such further meetings took place. There was no representation afforded to the Claimant, nor notice of dismissal, nor opportunity of appeal. Further, and notwithstanding all of the above there was no attempt or actions provided by the Respondent to justify the redundancy in the first place.  In continuing with the grossly rushed process and in keeping with the offensive box ticking exercise of redundancy the Respondent wrote to the Claimant on September 17th advising in the opening line that “your position as Head Chef will become redundant on 11th September 2020”. Again, the Respondent is seeking to give notice after the actual event. The context of the so-called appeal is to appeal the decision before it takes effect in a setting whereby it already has. There is copy of an email from the Claimant to his employer dated August 24th asking for a meeting about “clarity on my position” following a “Town Hall Meeting” had earlier that day. Two days later (August 26th) there was a so called “Consultation Meeting” with the Claimant and then there were no further meetings. The Claimant was dismissed sixteen days later, without notice of date of termination, or representation, or indeed without any procedure applying – fair or otherwise.

Legal Points:-  The 1993 amendment to the Unfair Dismissals Act provides that the reasonableness of an employer’s conduct is now an essential factor to be considered in the context of all dismissals, including redundancy dismissals. Section 6(7) of the 1997 Act (as inserted by the 1993 Act) provides that “in determining if a dismissal is an unfair dismissal, regard may be had…to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”. In Roche v Richmon Earthworks Limited, the claimant was made redundant following a reorganisation and contested the circumstances surrounding the redundancy, given she was given no prior notification, discussion or consultation. The EAT agreed that the dismissal was unfair and added that “the failure to hold any selection process or consultation with the claimant rendered it so”. Loss: The Claimant is a highly diligent individual and secured employment four weeks after the termination of his employment but at a reduced wage being €170 per week lower than that in which he was in receipt of when employed by the Respondent. In light of all of the above and taking into account the complete lack of procedure and rush to execute, as well as the Claimant’s age and service we respectfully ask the Adjudicator to apply the maximum award allowed by law in applying an award of 104 weeks of the net loss being €17,680. It should be further noted that both the WRC and Labour Court have issued recent decisions that include the premise the existence of the pandemic does not provide reason or excuse to allow employer negate statutory obligations under the Unfair Dismissals Act or Redundancy Payments Act and in particular where applies to fair procedure.

Substantive matters

2) Holiday Pay

The Claimant has a contract of employment that provides for 25 days annual leave as per Company Handbook. It is the Claimant’s calculation that he was due 10 days holidays on the termination of his employment. He was advised at the time by the Respondent that he needed to take the holidays as they could not be processed. He did not receive these holidays. The value of said 10 days is €1,543.6

At the hearing the Adjudication Officer requested the parties to engage on this subject of holiday entitlement. It is the Complainant ‘s position that he received two short phone calls from the Respondent in relation to the non-payment of the said 10 days holidays claim.  The first was on August 8th, the second was on August 20th.  In both calls the Complainant was advised that the Respondent had no case to answer and therefore no such holiday payment would be made.  There was no “discussion” as was requested by the Adjudication Officer and as suggested by the Respondent as having happened and no follow up email as promised. 

It is the Complainant’s position that this claim is straightforward.

The Complainant had a contractual entitlement of 25 days holidays per annum as referenced in the company handbook, details supplied. This contractual entitlement is not in dispute between the parties.

The Complainant submits that he took a total of 15 days annual leave from January 2020 to the time of his dismissal on September 11th 2020  (November 6th if minimum notice is taken into account.

Within the Complainant’s original submission there was a contemporaneous hand-written note from the Complainant stating the 15 days holidays that he took (leaving a balance of 10).  This was subsequently provided in the Respondent submission. 

The wage slips are as follows                                                                                                                                          (Pay Date Jan 2nd - 1 day holiday)                                                                                                                                    (Pay Date Jan 9th - 3 days holiday)                                                                                                                                              (Pay Date March 5th - 2 days holiday)                                                                                                                                     (Pay Date April 2nd – 8 days holiday)                                                                                                                                      (Pay date April 9th – 1 day holiday)                                                                                                                                         Total 15 days.  Leaving 10 days due.

The Complainant has been consistent throughout that he took 15 days holidays as the Respondent wage slip records clearly show.  Further, in the plethora of all other wage slips provided by the Respondent none show the Complainant taking holidays.  This is because none were taken, applied for considered or discussed.  The additional days the Respondent claims the Complainant took amount to a total of 29 days, in a circumstance whereby only 25 is the contractual entitlement.  Also, other than the 15 days the Complainant took, which are all supported by the Respondent wage slip copies, absolutely none of the other many days (total 29) that the Respondent claims were taken are supported by any wage slips.  Whereas, each and every day the Complainant says he took are supported by the record of wage slips that were supplied by the Respondent. 

The unsupported 29 days submitted by the Respondent have no supporting documentation and indeed notwithstanding this the actual dates of the undisputed holidays taken by the Complainant and supported by wage slip records of the particular 3 days on pay date January 9th are in fact not included in the extended 29. 

It should be noted that from late March 2020 to the date of his dismissal the Complainant was on the Government Wage Subsidy Scheme (WWS) as opposed to the Pandemic Unemployment Payment and worked at various Respondent locations during and throughout the very height of the lockdown.  At no time whatsoeverwas the taking of annual leave ever discussed between him and the Respondent, save for the time the holidays as supported by wage slip evidence and previously supplied contemporaneous note was taken.  The first time the Complainant became aware he was left short of his holiday pay was when he received his final payslip with statutory redundancy two weeks after being advised his role was at risk in the first place.            

As expressed by the Adjudicator this matter has to be addressed based on records and so the above and attached supporting documents are proof positive in favour of the Complainant.                      

3) Public Holidays

This claim has been withdrawn.

4) Calculation of statutory redundancy

The Claimant’s redundancy payments payment was calculated at the dismissal date of September 11th, 2020. However, said redundancy calculation should have run a further 8 weeks to take account of minimum notice. This did not happen and so the said shortfall applied for under the above Act is €184.0.  

2) Holiday Pay

I note that the Complainant has claimed that he is owed 8 days holidays, on the claim form but 10 days at the hearing. 

I note the position of both parties are each in agreement that 15 days were given, which left 10 days in dispute.

I note the detailed records of holidays set out above by the Respondent that they assert were given.

I find that the Complainant had accrued only 15 days holidays due the impact of Covid. However, I note that the Respondent agreed to grant the full 25 days holiday.

I find that the dispute centres around the additional 10 days holidays.

I note that the holiday year runs from 1st October to 30th September.

I note that the Complainant believes that these days are owed while the Respondent asserts that they were paid.

I find that records are critical in proving a case with claims under the Payment of Wages Act.

I note that the Respondent has supplied records to show that an additional 10 days were given as follows: 4 days on Friday 27th, Monday 30th ,Tuesday 31st March and Wednesday 1st April.  There were 2 days holidays taken on 22nd and 24th June, I day on 25th June, 3 days between 13th to 19th August, a total of 10 days.

I find that this gives a total of 25 days holidays given.  

I find that the pay slips show that these were paid through the TWSS and marked ‘basic hourly wage’ rather than ‘annual leave’ and this has contributed to the confusion.

I find that the Complainant has received his full complement of holidays and so this part of the claim fails.

3) Public Holidays

I note that this claim was withdrawn.

4) Redundancy Calculation

I note that the claim is based on the assumption that the eight weeks would run forward from the date of issuing of the notice.

I note that Dr Mary Redmond in “Dismissal Law in Ireland [21.77] states, “If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a no notice one and will add on the contractual or statutory notice, whichever is greater”.

In this case I find that the contract of employment provided for a payment in lieu of notice.

Therefore, the termination date is 11th September 2020.

I find that the redundancy calculation was based on the termination date of 11th September 2020.

Therefore, I find that the redundancy calculation was correct and no unlawful deduction was made from this employee.

Unfair selection for redundancy, lack of fair procedures, holiday pay owing,