Complainant

Respondent

Parties

Sean  Morley

Connolly Motor Group

Complainant

Respondent

Anonymised Parties

Sean  Morley

Connolly Motor Group

Representatives

 Fergal Cavanagh

Shane MacSweeney MacSweeney & Company Solicitors

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-00041520-001

10/12/2020

The Complainant was employed as a Parts Advisor with the Respondent since March 2017. He was paid a monthly salary of approximately €2,700 and is claiming that he was unfairly selected for redundancy

The Complainant stated that he was put on temporary lay off in March 2020 as a result of the effects of the Covid pandemic. Further to this, he sent an email to the After Sales manager on 31 July 2020 to inquire about his position. He subsequently received a phone call from the General Manager on 5 August 2020 who stated that he would like to meet him on 7 August because it was likely that his position was going to be made redundant. He was informed at this meeting that he was being dismissed on the grounds of redundancy. He stated that a number of weeks after this meeting, he became aware that the Respondent had engaged another employee who was doing exactly the same work as the Complainant.

The Respondent’s representative highlighted that the company effected approximately twenty redundancies between the period from March to August 2020 as a result of the downturn in work due to the Covid pandemic.

During a phone call with the General Manager on 5 August, the Complainant was informed that his position was being considered for redundancy and that he would be sent an email inviting him to a meeting on 7 August to discuss the matter. During this meeting the Complainant was formally made aware that his position was being made redundant due to the downturn in work. He was subsequently issued with his redundancy payment as well as a reference and did not seek to appeal the decision to dismiss him despite having been provided with the opportunity to do so in the letter of termination which was issued to him.

It was also highlighted that while the Respondent had for some time given consideration to employing a mobile parts advisor who would assume responsibility for managing parts across their operations in Galway, which was similar to a role they had in their Sligo operations, the recruitment of such a role had not been specifically planned at the time of the Complainant’s dismissal. In September 2020 however, following an unsolicited application from a former employee, the Respondent decide to proceed with their plans to recruit for the mobile parts advisor role. It was asserted that this role differs substantially from that of the Complainant, most notably that it is a mobile role which requires an ability to drive which the Complainant was not able to do.

PRELIMINARY POINT

It was highlighted to me by the Respondent’s representative at the hearing on 20 July 2021 that there were documents on file which contained a settlement figure that Respondent had made and which the Complainant had rejected. In making my decision, I have disregarded the contents of these specific documents.

FINDINGS

In reaching my decision on this complaint, I have reviewed the relevant provisions of Section 6 of the Unfair Dismissals Acts 1977 to 2015.

Specifically, Section 6(1) provides that a dismissal is unfair “unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”. It is the Respondent’s case that the Complainant’s position was redundant due to a downturn in revenue as a result of the pandemic and that he was fairly dismissed on these grounds. The definition of redundancy, as set out in Section 7 of the Redundancy Payments Acts is the starting point for a consideration of the Respondent’s position and Section 7 (2) sets out five definitions of redundancy:

a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes 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 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 his 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) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The Respondent’s position is that the redundancy of the Complainant’s position was required due to a lack of sales and a consequent reduction in their operations. Accordingly, I do not consider that there was a breach of Section 6 (1) and that a redundancy situation arose in relation to the specific role in which the Complainant was engaged.

I must also however have regard to the provisions of Section 6(7) of the Act (as amended) in relevant part as follows:

(7) 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 must consider whether, notwithstanding the fact of the redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable. In making a decision on this, I have examined the process surrounding the notification of redundancy and whether or not there was a meaningful consultation process wherein alternatives were explored.

I note firstly that the Complainant was telephoned by the General Manager on 5 August and was informed that his role was being considered for redundancy. Furthermore, I note that at the meeting two days later he was informed at the outset that he was being dismissed on the grounds of redundancy. I also note that, according to the General Manager’s direct evidence, there was no discussion of any alternative roles at the meeting of 7 August and the Complainant was not asked to present any such alternatives. Accordingly, I am satisfied that the consultation process was wholly inadequate and that was no real attempt made to seek and explore alternatives to redundancy for the Complainant.

There is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. This decision was consistent with the findings of the Labour Court in the matter of Ahmad v Trinity College Dublin UDD2030. While the Respondent’s representative opened two cases to me, namely Saul & Ors v Mahony Manufactured Signs Limited UD37/2003 and White v Yenom UD2030 where the Tribunal found that a consultation period would have been futile and it was asserted that the same would have applied in this case, I do not accept this and believe that a consultation process could have been worthwhile and should have at least been attempted.

I note firstly that the Respondent hired a Mobile Parts Advisor less than six weeks after the  Complainant was informed of the termination of his employment and that he was not considered for this position because he did not have a driving licence. I believe that had the Respondent entered into a genuine consultation period with the Complainant, he would have been made aware that they were looking for a Mobile Parts Advisor and that he would be considered for this role if he had a driver’s licence. While I note the Respondent’s assertion that the Complainant would not have agreed to get a driver’s licence given that he had not done so over the previous 40 years and that he previously informed one of his colleagues that he had no intention of getting a licence, he may have done so if he was at risk of being dismissed.

While I also recognise that it would have taken some time for him to obtain his licence, the Respondent highlighted in evidence that there was no urgent requirement for the role at the time of the Complainant’s dismissal, that the subsequent decision to hire a new employee for the role was opportunistic and that the mobile element of the role was only 20%.

I also note that there was no evidence presented to suggest that the Respondent carried out an analysis of the Complainant’s skillset and believe that a genuine consultation period would have enabled the Respondent to perform such an analysis and discuss with him what he could offer in other roles across the company’s operations, given that he had over 40 years’ experience in the workplace.  

While the Respondent’s representative also highlighted that the Complainant failed to appeal his dismissal and I note the decision of the Labour Court in the matter of Aryzta Bakeries and Vilnis Cacs UDD1812 wherein it was found that the Complainant in the matter should have appealed the decision to terminate his employment, I am satisfied based on the evidence presented to me in this case that the Complainant only had an issue with the decision to dismiss him on the grounds of redundancy when he became aware that the Respondent had hired a mobile parts advisor in September 2020, which was outside of the time that he could have appealed the matter internally, namely 5 days after he was informed of his dismissal on 7 August 2020.

Bearing all of the above in mind, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015.

THE LAW:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) n/a

(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,

FINDINGS

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate remedy.

Given that his previous role is redundant, and I find that he is unsuitable for the Mobile Parts Advisor role as he has still not learned to drive, I consider that compensation is the appropriate and practical form of redress in this case.

I note that, in accordance with s. 7 ( c ) ( i ) of the Act as outlined above, I may award 104 weeks remuneration in financial loss. It is worth highlighting that this is not an estimate of the loss in the 104 weeks from the date of the dismissal but is a maximum of 104 weeks attributable to the dismissal.

Specifically, this amount is comprised in the first instance of a determination of the financial loss incurred by the Complainant between both the dates of termination and that of the hearing, having regard to s. 7 (2) (a) and (c) of the Act outlined above. In addition, I must estimate his future losses after the hearing date, also in line with s 7 (2) (a) and (c) above.

It was highlighted at the initial hearing of this matter on 20 July 2021 that the Complainant had not provided any evidence of attempts he had made to mitigate his losses. While he did produce some evidence at the resumed hearing, I noted that all of the applications were made in the period after the date of the first hearing and that there were no records whatsoever of any job applications made prior to this. When asked how many jobs he had applied for in the period since his dismissal and the date of the adjourned hearing on 20 July, a period of eleven months, the Complainant stated that he had made less than five such applications.

As has often been noted in case law, including in Sheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. In that regard, the Complainant falls far short of what is required.

While I also note that he is still unemployed, and that I must therefore consider what to award in respect of his future losses, I must recognise his wholly inadequate efforts in attempting to find work since his dismissal and the likelihood that, on the basis of the evidence to date, this will not improve in the future. I also note that he provided no evidence at the hearing of any plans to enhance his skillset, for example by learning to drive.

Taking all of the above factors into account, I find that the Respondent should now pay a sum of €7,500 in compensation to the Complainant in respect of the unfair dismissal. For the avoidance of doubt, this amount is additional to what was paid to him when he was dismissed.

No consultation; no alternatives explored; unfair dismissal