Complainant

Respondent

Parties

Jan  Roj

Reynolds Logistics Limited

Representatives

  Self-represented

Graham Bailey IBEC

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-00040686-001

29/10/2020

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

CA-00040686-002

29/10/2020

The Complainant was employed by the Respondent from 28 May 2018 in the capacity of Heavy Goods Vehicle (HGV) Driver.  He was dismissed on 1st of October 2020 by reason of redundancy.

He has claimed that he was unfairly selected for redundancy, rendering the dismissal unfair. He has sought compensation.  The claim was lodged with the WRC on 29th October 2020.   The Respondent has rejected this claim.

The complainant has also lodged a claim under section 6 of the Payment of Wages Act, 1991 in respect of an alleged failure to pay him for his notice period.

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

CA-00040686-001

29/10/2020

The complainant has claimed that he was unfairly selected for redundancy, rendering his dismissal unfair.    The Complainant was employed by the Respondent from 28 May 2018 in the capacity of Heavy Goods Vehicle (HGV) Driver.  He was dismissed on 1st of October 2020 by reason of redundancy.

The Respondent disputes that the Complainant has been unfairly dismissed and submits that he was dismissed by reason of genuine redundancy.

The Respondent submits that a legitimate redundancy situation arose, and the Complainant was selected for redundancy through a Last In First Out (LIFO) selection process following which he was paid his statutory redundancy entitlement on 15th of October 2020.

 The Complainant was employed by the Respondent from 28 May 2018 in the capacity of Heavy Goods Vehicle (HGV) Driver.   The Complainant’s role involved him working on the Aviation contract held by the Respondent. This involved him transporting goods to Dublin Airport for the Respondents client on the site.

Due to the impact of the Covid-19 pandemic on the aviation sector, the Respondents client had to greatly scale back their operations, which in turn resulted in a significant drop off in the work available for the Respondent.

On 17 September 2020, a letter was issued to the Complainant and twenty-two other drivers who were working on the aviation contract to inform them that their roles were at risk of redundancy as a result of an 80% decrease in the volume of work available for them. (This letter was presented in evidence).

On 23 September, the Complainant attended a consultation meeting with the Respondent and other drivers who were placed at risk of redundancy, along with Mr. C their Siptu rep.    At this meeting, the Respondent outlined the process that would be followed and informed those in attendance that a Last in First Out (LIFO) selection process would be used.   (Minutes of consultation meeting were  submitted).

On 25 September, the Complainant attended a second formal group consultation meeting with the Respondent and Mr C of Siptu also in attendance. At this meeting, the proposed redundancies were discussed, and the employees present were informed that the Respondent would rehire employees in the future should they be in a position to do so.    (Minutes of 2nd consultation meeting minutes were submitted.)

On 30 September, the Complainant attended a third formal group consultation meeting with the Respondent. The Respondent answered a number of queries that had been put to them by the employees who were at risk of redundancy.  (Minutes of 3rd consultation meeting submitted).

On 1 October, the Complainant attended a one-to-one formal consultation meeting with  the Respondent. (Final consultation meeting minutes also submitted).

After the meeting the Complainant received a letter from the Respondent outlining that he was to be made redundant .  (Letter of redundancy submitted).

On 13 October, an email was sent to the Complainant confirming that all monies owed to him would be paid. The Complainant confirmed that all monies owed to him had been properly accounted for (Email correspondence submitted in evidence).

 The Respondent refutes the Complainant’s allegation that he was unfairly dismissed in its’ entirety and submits that there was a legitimate redundancy situation, by virtue of which the role of the Complainant was no longer sustainable. The respondent submits that the Complainant was employed to work on a particular client contract of the Respondents. This client was in the aviation sector and as a result of the Covid-19 pandemic, the volume of work available on this contract fell by 80% and was forecasted to remain at this level for the foreseeable future. The Complainant was put at risk of redundancy on 17 September 2020 and was given the opportunity to engage in consultation with the Respondent until the position was formally made redundant on 1 October.

The respondent relies on Section 7 (2) of the Redundancy Payments Act 1967 which outlines the five legitimate reasons for redundancy:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(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

The Respondent refutes that the Complainant contends that the complainants redundancy was solely a costcutting measure which was made necessary due to the impact of the Covid-19 pandemic on the Respondents business.

The Respondent submits that it used a Last in First Out (LIFO) method of selection in line with a custom and practice which had already been established with the Respondent. The Complainant had commenced employment with the Respondent in May of 2018 and by virtue of this he was one of the most recent 9 employees to have started with the Respondent in this role. It was for this reason only that the Complainant was selected for redundancy.

The respondent in support of its submissions  pointed to the case of An Administrator v A Social Welfare Office, Adj-00004800, the Respondent in that case had experienced a significant downturn in business due to factors which were entirely beyond their control. The Adjudicator upheld the common position on the use of a LIFO selection method by stating that it did not amount to a breach of Section 6 (3) of the Act and also found that the claimant was not unfairly selected for redundancy. The respondent submits that although the facts of the above case vary slightly from this case, in this case it was decided to make the Complainant’s role redundant as it had been rendered unviable as a result of their client’s misfortunes, and the subsequent impact this had on the volume of work available to the Complainant.

The respondent referred to Section 6(7) of the Unfair dismissals Act and submits that it behaved reasonably and satisfied Section 6(7) in the steps taken by ways of meetings, and correspondence with the Complainant.

The Respondent submits that it engaged in a meaningful consultation process with the Complainant, conducting four meetings with him, which included three group consultation meetings and an individual consultation meeting also.   The complainant was afforded the right to representation at all meetings, with Mr. C of Siptu in attendance throughout the consultation process.   It was only after all possible alternatives to redundancy were considered that a decision was made to confirm the redundancy of the Complainant’s role.

The Respondent refutes that the Complainant was selected for redundancy unfairly and contends that the redundancy was solely a cost-cutting measure and that no other factors formed an operative consideration in formulating the decision to put the Complainant’s role at risk of redundancy. It was the role, and not the person, that was made redundant. This is demonstrated in the fact that the Complainant was explicitly told in the consultation meetings that he would be hired back, with Mr. D stating the following to the Complainant:

“[I]t is unfortunate that we are losing good drivers. I’m sure at some stage in the future business will pick

back up again and we would have no issue in taking you back.”

It is submitted by the respondent that since the redundancy occurred, the Respondent has in fact sought to reemploy the Complainant, which shows that the words of Mr D were in fact genuine. This can be seen in email correspondence between the Complainant and the Respondent. 

In conclusion, it is the Respondent’s position that the dismissal of the Complainant due to redundancy cannot be deemed to be unfair as there was a genuine redundancy situation which affected the Complainant’s role. The Respondent contends that the process utilised was fair and reasonable and in line with the custom and practice.

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence, or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee and

(d)    n/a.

The respondent in this case submits that the complainant was dismissed by reason of redundancy.

Redundancy is defined in Section 7(2) of the Redundancy Payments Act, 1967, as follows:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose 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 the 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 the 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)    n/a,

(e)    n/a.

In the case before me the respondent has stated the Complainant was employed by the Respondent from 28 May 2018 in the capacity of Heavy Goods Vehicle (HGV) Driver which involved him working on the Aviation contract held by the Respondent. This involved him transporting goods to Dublin Airport for the Respondents client on the site.

The respondent advised the hearing that due to the impact of the Covid-19 pandemic on the aviation sector, the Respondents client had to greatly scale back their operations, which in turn resulted in a significant drop off in the work available for the Respondent.

The Respondent refutes that the Complainant was unfairly selected for redundancy and contends that the redundancy was solely a cost cutting measure which was made necessary due to the impact of the Covid-19 pandemic on the Respondents business.

The respondent advised the hearing that  the Complainant was put at risk of redundancy along with 22 other employees, 9 of whom, including the Complainant were made redundant. The reasoning for putting these particular roles at risk of redundancy was because the employees engaged on the aforementioned aviation contract were directly impacted by the significant decrease in the volume of work available. The complainant was part of a pool of 9 employees who were made redundant on the basis that they were ‘Last in’ on the Aviation contract.

The respondent advised the hearing that it had on 17 September 2020, issued a letter to the Complainant and twenty-two other drivers who were working on the aviation contract to inform them that their roles were at risk of redundancy as a result of an 80% decrease in the volume of work available for them.   This letter was presented in evidence.

The respondent advised the hearing that four consultation meetings followed the issuing of this letter.   Minutes of these meetings were presented in evidence.

The complainant at the hearing disputed that he was employed solely on Aviation contracts and stated that he had in his final few months with the company worked in other areas.  The respondent agreed that this was the case and stated that as there was no work on the aviation side it had tried to provide some work for those drivers for as long as was possible by dividing out the work and giving them, some work in other areas until this was no longer viable as the volume of work in the TOP area had started to decrease.

The respondent advised the hearing that it had used LIFO as the method of selection for redundancies for those drivers who were affected by the aviation contracts.    The respondent provided a list of those made redundant along with details of their start dates and contract .    The complainant disputed that the respondent had adhered to the LIFO method of selection and stated that two individuals who had started after him were not made redundant.  The respondent agreed that these two individuals had later start dates as indicated in the documentation provided by them and agreed that they had been kept on.  The respondent stated that the two individuals had not been employed on aviation contracts but were employed on other TOP contracts.  The respondent added that the aviation contracts were 4-day week contracts and that the complainant had specifically requested at the outset that he be allowed to work 4 days per week due to his personal circumstances.   The respondent advised the hearing that the TOP contract required 5 or 6 days per week and that the complainant had advised them at the outset of his employment that that he didn’t want to work 5 or 6 days a week and so was placed on the 4-day week Aviation contract.  The complainant at the hearing did not dispute this and agreed that he wanted to work four days as it suited him to work four days and have three days off due to his personal circumstances.  The respondent added that the complainant was able to be facilitated in this regard by placing him on the aviation contract which enabled him to work a 4-day week.  

The respondent also advised the hearing that the complainant was told that he would be offered work in the future if business picked up and stated that true to its word the respondent did offer the complainant the opportunity to return to work for them, but he refused.  The complainant at the hearing agreed that he had been offered the chance to return to work for the respondent but stated that he had turned it down as he had already found another job which he initially told the hearing was a higher paid job but later stated that it was lower paid.   The complainant then stated that the reason he had refused to return to work for the respondent when the offer was made was due to a fear that he may be made redundant again.

In terms of considering whether the dismissal of the Complainant was justified on grounds of redundancy, as provided for at Section 6(4) of the Unfair Dismissals Act [1977-2017], I must be satisfied that  a redundancy situation applied at the time that it was fair that the Complainant was selected for redundancy.

In order for the Respondent to justify a redundancy, it must be shown that there was a genuine redundancy as set out in S.7 (2) above.   I am satisfied from the totality of the evidence adduced that a genuine redundancy situation existed, that the complainant was fairly selected for redundancy  and that the employer acted reasonably in all the circumstances.  Having concluded that a genuine redundancy situation existed in this case, I am satisfied that redundancy was the main reason for the dismissal of the Complainant. Accordingly, I am satisfied that the complainant was not unfairly dismissed.

I declare this claim to be not well founded.

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

CA-00040686-002

29/10/2020

The Complainant in his complaint from alleges that he was not fully paid for his notice period.

The Respondent in its prehearing submissions refuted this claim stating that it had on the 13th of October emailed the Complainant to check with him that the amount set out on his final paycheque was accurate. In the email the Respondent asked the Complainant “to ensure all payments are correct in your final pay”. The respondent submitted that the Complainant responded and confirmed that they were. (Email correspondence submitted in evidence).

The complainant submits that he was not fully paid for his notice period.  The respondent prior to the hearing in its submissions stated that the complainant was paid all of his entitlements in full and stated that the complainant confirmed this when asked by the respondent in email correspondence.    The respondent at the hearing stated that having looked into the matter it was now conceding that it had in fact underpaid the complainant in respect of his notice period.  The respondent stated that it had paid the complainant one week’s pay in respect of his notice period but that he was in fact due two weeks’ pay in respect of his notice period, thus he is still owed 1 weeks’ pay.    The respondent apologised for this at the hearing.   

I am satisfied that this claim is well founded and that the complainant is owed 1 weeks’ pay in respect of his notice period. 

I declare this claim to be well founded and I direct the respondent to pay to the complainant the equivalent of one week’s pay in respect of his notice period.