Complainant

Respondent

Parties

Conor  Hynes

Heneghan Premier Services Limited

Representatives

Michael Kinsley BL instructed by  Hutchinson Davidson & Son Solicitors

 Watch Your Back

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-00041547-001

15/12/2020

The Complainant alleged that he was unfairly dismissed, that his redundancy was a purported means to dismiss him and he was dismissed because he made a protected disclosure. The Parties were requested to make further post Hearing submissions regarding loss, mitigation of loss and redress sought. The Complainant made a further submission and the Respondent did not.

The Complainant was employed by the Respondent as a Driver/Installer from October 2018.

The Respondent is a company involved in the provision of delivery services to retail outlets delivering household goods. 

In February/March 2020, the Complainant was selected for lay off. The Complainant was informed that the reason for his lay off was due to the Covid-19 health emergency. The Complainant was not provided with any basis or justification, despite requests by the Complainant, regarding his selection for lay off. The Complainant sought to engage with the Respondent regarding work during the lockdown but the Respondent failed to adequately engage with the Complainant in this regard.

The Complainant informed his employer that he would be willing to work during the Covid-19 restrictions as long as he was provided with adequate protective equipment to ensure his safety and that of his family members.

The Respondent issued the Complainant with a number of emailed letters from March 2020 up to his dismissal which the Respondent claimed took effect on 8 July 2020. In this correspondence, the Respondent:

Failed to outline to the Complainant why he had been chosen for lay-off.

Failed to provide the Complainant with a written procedure regarding lay-off or redundancy and the criteria for selection for lay-off or redundancy.

Failed to afford the Complainant an opportunity to engage regarding the situation at work and the prospect of avoiding redundancy.

Concealed the basis for redundancy and failed to outline clearly what reasoning or basis was being used.

In July 2020, the Respondent purported to dismiss the Complainant for redundancy.

The Complainant sought access, through his Representative, to data held by the Respondent and to inform the Respondent that he considered his dismissal to have been unfair and carried out in breach of his rights. The Complainant received a response, on behalf of the Respondent, from an organisation called “Watch Your Back”. The said letter attached a “Redundancy Timeline”.

The “Redundancy Timeline” contained a number of matters that are factually incorrect and again fails to outline the basis for the Complainant’s selection for layoff and redundancy. Further, the said document makes false and unsupported claims regarding the Complainant’s conduct.

The Respondent failed to demonstrate any basis for the Complainant’s redundancy and failed to provide any supporting evidence for the downturn of business which it alleges took place.

The Complainant was unemployed for an extended period following his dismissal. 

Preliminary Points

The Complainant raised the following preliminary points:

The Respondent failed to provide any submission to the WRC outlining the reason for the Complainant’s dismissal and the procedure used to effect such dismissal.  The Complainant also made a subject access request to the Respondent pursuant to the Data Protection Act 2018. This request was made in circumstances where the Complainant had not been afforded any substantial information by his employer regarding the process of his selection for lay-off and redundancy. No response had been received from the Respondent regarding this request.

Burden of Proof

Section 6 of the Unfair Dismissals Act 1977-2015 (hereinafter the 1977 Act) states at subsection (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.”

Therefore, where the fact of dismissal is accepted, the burden of proof shifts to the Respondent employer to prove that the dismissal was fair. It was accepted by the Respondent that the Complainant was dismissed from his employment. Therefore, the burden of proof shifts to the Respondent to prove that the dismissal was fair and reasonable and was based on one of the substantive grounds outlined in the 1977 Act.

Procedural Fairness

The 1977 Act places a heavy burden on an employer to demonstrate that the procedures used in arriving at a decision to dismiss were fair and reasonable.  In Glover v. BLN [1973] I.R. 388 the Supreme Court held that any disciplinary or equivalent process engaged under a contract of employment must be operated in a manner consistent with natural justice. The Court stated

““This court in In re Haughey [1971] I.R. 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

In Kilsaran International Ltd  v Vitalie Vet [2016] 27 E.L.R. 237 the Labour Court held that an employee is entitled to be made aware, in detail, of all of the allegations made against him at the commencement of an investigation. This, the Court held, was necessary to comply with the requirements of fair procedures set out by the Supreme Court in Glover, and in order to allow the accused employee to properly prepare his defence and a response to the matters alleged against him.  The Complainant, while not the subject of a disciplinary investigation process was entitled to the same level of procedural fairness in determining whether his role had been made redundant, whether he should be selected for redundancy and in determining whether alternative employment was available or other alternatives to redundancy. 

Redundancy

19. Section 7 of the Redundancy Payments Act 1967 as amended outlines the following matters which, if proven, will give rise to a redundancy situation

“(a)the fact that the 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.”

As set out above, the burden of proving that a redundancy situation existed at the Respondent Company rests on the Respondent.

In Daly v Hanson Industries Ltd UD 719/1986 the EAT confirmed that the requirement that a dismissal, in order to be justified on the basis of redundancy, must arise “wholly or mainly” from that ground. The EAT confirmed that an employer’s motives and actions must be scrutinised and that a decision maker must take account of other motives for the dismissal of an employee.

In Boucher & Ors v. Irish Productivity Centre the Employment Appeals Tribunal held that the employer was required to demonstrate the existence of the redundancy situation and the fairness of the redundancy process.

In Cusack (Complainant) v Dejay Royale Alarms Ltd  [2006] 17 E.L.R. 51 the EAT held that an employee was entitled to be provided with reasonable notice of any impending redundancy situation and to be provided with an opportunity to engage with their employer regarding alternatives to redundancy. Further, the EAT held that an employer must make genuine efforts to find alternative employment for an employee.  In this case, the Respondent did not discharge its obligation to properly consult with the Complainant before dismissing the Complainant. Further, the Respondent did not afford the Complainant the opportunity to consider alternatives to redundancy, such as alternative employment. In this case, the Complainant was simply informed that he was to be dismissed on the basis of redundancy.

It was submitted that the failure of the Respondent to engage adequately or at all with the Complainant regarding his employment represented a fundamental breach of fair procedures and is a breach of the Respondent’s obligations under the Unfair Dismissals Act 1977 as amended.

In Sheehan & O’Brien  v Vintners Federation of Ireland Limited [2009] E.L.R 155 the EAT held that the failure of the Respondent to observe fair procedures in the process of dismissing for redundancy rendered that dismissal unfair. In that case, the EAT was critical of the respondent employer’s failure to properly afford its employees an opportunity to engage regarding redundancy or to offer or consider alternatives to redundancy. The Tribunal held

“The Tribunal believes that the respondent acted unfairly in failing to consider

earnestly the Complainants’ proposals regarding the reorganization of the work which would have realised significant savings. Furthermore, the respondent’s failure to properly consider either of the Complainants for the new organisational development officer role was also unreasonable. Accordingly, the Tribunal believes that the dismissals were unfair. In allowing the claims under the Unfair Dismissals Acts 1977 to 2001, and awarding compensation under the said legislation, the Tribunal has regard for the fact that a redundancy situation existed and it makes an award to each Complainant of €43,000 inclusive of any redundancy payments made to them on termination of their employment.”

It was submitted that the Respondent in this case failed to afford the Complainant fair procedures in the manner in which it dismissed him. It was submitted that the Respondent failed to afford the Complainant any opportunity to put forward alternatives to redundancy and failed itself to consider such options. It was submitted that it was for the Respondent to prove that each element of the dismissal process, including the obligation to engage with the Complainant, was carried out thoroughly and fairly.

In Walshe v. Stauntons Intersports UD 441/1999, the EAT held that the failure of an employer to discuss and consider alternatives to redundancy rendered the dismissal of the employee unfair.

It was submitted that the above authorities demonstrate that the Respondent is required to demonstrate not only that a redundancy situation existed but that it carried out the redundancy process in a fair manner and afforded the Complainant an opportunity to make submissions regarding his dismissal and considered alternatives to the Complainant’s dismissal. It was submitted that the actions of the Respondent fell far short of the standard required where an employer seeks to dismiss for redundancy.

It was submitted that consideration should be given in assessing the fairness of the Respondent’s actions, to the size and nature of the Respondent Company as well as the position and length of service of the Complainant.

Selection for Redundancy

It was submitted that no fair selection criteria for redundancy have been put forward by the Respondent. In Shanley v IT Alliance Ltd UD467/2002 the EAT held that the absence of such transparent criteria was a matter which rendered the redundancy process unfair.

In Dowling v Whole Foods Wholesale Ltd UD95/2006 and Sheehan and O’Brien v Vintners Federation of Ireland UD787/2007 the EAT confirmed the importance of fair and transparent selection criteria in order to substantiate a claim that a dismissal is based on redundancy.

Protected Disclosure

The Protected Disclosures Act 2014 provides protection to employees who make disclosures of relevant information which has come to the employee’s attention in the course of their employment.  The concept of “relevant information” is set out at Section 5 as information which, in the reasonable belief of the worker discloses a relevant wrongdoing. 

Section 5(3) lists the matters that will be considered “relevant wrongdoings” under the 2014 Act and it includes :

“  that the health or safety of any individual has been, is being or is likely to be endangered”

Section 3(1) of the Act defines “disclosure” as “in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention” . In order to be considered a “protected disclosure” for the purposes of the 2014 Act, the relevant information must be reported in accordance with either Section 6, 7,8,9 or 10 of the Act. 

Section 6 of the 2014 Act provides for the reporting of relevant information to a worker’s employer. It states

“(1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

to the conduct of a person other than the worker’s employer, or

to something for which a person other than the worker’s employer has legal responsibility, to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.” (emphasis added)

Section 5(8) of the 2014 Act shifts the burden of proof regarding the question of whether a disclosure is a “protected disclosure” for the purposes of the 2014 Act. It states

“In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

The test set out in Section 5 is that of “reasonable belief”. It is therefore necessary only for the worker making the disclosure to have held a “reasonable belief” that the information disclosed a relevant wrongdoing. In the UK case of Babula v. Waltham Forest College [2007] EWCA Civ 174 the Court of Appeal held, in interpreting a similar requirement in UK legislation that 

“Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the Complainant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgement, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.”

In Aidan & Henrietta McGrath Partnership v. Anna Monaghan PDD 2/2016 the Labour Court issued a determination in which it considered whether the treatment to which the Complainant in that case had been subjected could be attributed to her having made a protected disclosure. In finding for the Complainant, the Court outlined the test applicable to whether a Complainant has been penalised and whether certain treatment of a worker can be attributed to the making of a protected disclosure.  The Labour Court was of the view that while there may be more than one underlying cause for the treatment to which an employee is subjected, there will be a breach of Section 12 of the 2014 Act where the making of the protected disclosure can be identified as an operative cause. It stated “Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that“but for”the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”

It was submitted that the Complainant brought matters to the attention of his employer regarding the absence of, and need for, proper protective equipment for employees during the Covid-19 pandemic. It was submitted that the disclosures made by the Complainant are protected disclosures for the purposes of the 2014 Act. It was submitted that the various disclosures made by the Complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5.

In Norbrook Laboratories v. Shaw [2014] UKEAT the Employment Appeal Tribunal, upheld a decision of the Employment Tribunal that the raising by an employee of concerns regarding the safety of employees was a matter which fell within Section 43 of the Employment Rights Act, which contains provisions similar to those of the Protected Disclosures Act 2014. In Norbrook, the Court held that the protected disclosure had been made over the course of several communications by the relevant employee.

It was submitted that the limitation contained in Section 5(3)(b) of the 2014 Act, is not contained in Section 5(3)(d) of the 2014 Act and therefore claims of bullying and inappropriate treatment are matters which can form the basis of a protected disclosure.

In Baranya v. Rosderra Meats [2020] IEHC 56, the High Court made clear that the fact that a complaint amounts to a grievance does not exclude it from being considered a “protected disclosure” for the purposes of the 2014 Act. This was confirmed by the Supreme Court on appeal which held that an employee’s complaint regarding health and safety could be considered a protected disclosure. The Court referred the matter back to the Labour Court to decide the matter on that basis.

It was submitted in light of the above that the Complainant’s disclosures to his employer are “protected disclosures” for the purposes of the 2014 Act and that therefore the Complainant is entitled to the protections of the Act.

It was submitted that the treatment to which the Complainant was subjected by the Respondent following the making of his disclosure regarding health and safety, demonstrate that he was treated less favourably and ultimately dismissed as a result of raising health and safety complaints.

It was submitted that the dismissal of the Complainant was an unfair dismissal for the purposes of the Unfair Dismissals Act 1977 for the following reasons:

No redundancy situation existed at the Respondent Company;

The Complainant was unfairly selected for lay-off and redundancy.

The Respondent failed to engage with the Complainant at all regarding the prospect of redundancy, his selection or alternatives to redundancy that might exist.

Redundancy was used as a cloak to conceal the reasons for the Complainant’s dismissal.

Further the Respondent dismissed the Complainant in response to health and safety concerns regarding the availability of Personal Protective Equipment at the workplace.

 Redress Sought

 The Complainant has suffered financial loss as a result of the Respondent’s actions including loss of salary and benefits and sought maximum compensation.

The Respondent was notified of the Remote Hearing by the WRC on January 24th 2022.

The Respondent was then requested by the WRC to supply emails for the persons to be included on the Respondent side at the Hearing but no list of attendees was supplied to the WRC, despite follow up by the WRC Case Officer for the Complaint. The Hearing was scheduled for 1.30 on February 24th. The Complainant and his representatives were present at the commencement of the Hearing. No representative from the Respondent was present at the commencement of the Hearing. Some time was given for them to appear by the Adjudicator and the Hearing commenced at approximately 1.40pm when the Complainant Representative opened their case. At approximately 2pm a Representative for the Respondent joined the Hearing and apologised that they had just received the email details in the last few days. The situation as to what had taken place since the start of the Hearing was explained to the Respondent Representative, who then informed the Adjudicator that she had another appointment at 2.30pm and she would not be able to stay beyond that time.  The Adjudicator then discussed with the Parties about the Respondent Representative giving their evidence immediately or adjourning the hearing due to the time limit imposed by the Respondents Representative.  An adjournment was objected to by the Complainant Representative due to the cost involved of another days Hearing and that the Respondent had prior history in a previous case of acting the same way.  The Respondent Representative then asked to introduce a document, already submitted prior to the Hearing, called the “Redundancy Timeline” and she advised she was not going to offer any further evidence.  The Complainant Representative objected to this based on the Zalewski and Burke V Arthur Cox rulings that the person introducing evidence must be available to give the evidence and for cross examination and as the document “Redundancy Timeline” involved statements and accusations by the Respondent Manger, who was not present to give evidence and they objected to its introduction unless the Respondent Manager was present to be cross examined on the document. The Respondent Representative confirmed, in replying to a query from the Adjudicator, that were an adjournment granted the Respondent Manager would probably not attend a reconvened Hearing. The Adjudicator then decided that the document could not be introduced if the Witness was not present to give evidence regarding the document.  The Respondent Representative accepted this. The Respondent Representative then left the Hearing.

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.

In addition The Workplace Relations Act 2015 amended the Unfair Dismissals Act 1977 as follows;

1 (a) in section 1 by inserting the following definitions:

“ ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014;

‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014;”;

-(b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2):

“(ba) the employee having made a protected disclosure,”;

-(c) in section 6 by inserting the following subsection after subsection (2C):

“(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).”;

(d) in section 7 by inserting the following subsection after subsection (1):

“(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.”;

The Complainants employment was terminated as a result of redundancy. This was contested by the Complainant. The Unfair Dismissal Act 1977 states a dismissal is unfair unless the Respondent has substantial grounds for the dismissal.  The Respondent was notified of the Hearing and while a Representative appeared for the Respondent late and under a short time availability, they were not in a position to submit the Respondents grounds for showing the dismissal was fair. The only submission they were in a position to make was a redundancy timeline document which as noted above was rejected by the Adjudicator for submission on the basis the Respondent was not present (by choice it seems) to appear as a Witness and be open to give cross examination on the document. The availability of the Respondent to undergo examination or cross examination on submitted evidence is a fundamental legal principle since the Zalewski and Burke/Arthur Cox case.  The relevant passage from the Burke Case is ” This decision is in line with the  Paragraph 46 of Simons J in the Burke case where he states “it is essential that evidence in the applicant’s unfair dismissal claim be given on oath and that both parties be entitled to defend their position by way of cross-examination on oath.” and further supported by Paragraph 65 “This factual controversy can only be properly and fairly resolved by requiring both sides in the unfair dismissal claim to give evidence on oath and to submit to cross-examination on oath.  As explained by O’Donnell J. in the majority judgment in Zalewski (at paragraph 144), the significance of evidence on oath is not because of any importance attached to the procedure itself, but because it triggers the power to punish for false evidence and thus provides an incentive to truthful testimony.  The judgment also reiterates (at paragraph 145) that the right to cross-examine the opposing party is fundamental to fair procedures and is one of the rights without which no party could hope to make any adequate defence of their good name.”

The Complainant submitted that he was selected for lay of and redundancy as a result of;

Making a protective disclosure

No redundancy situation existed at the Respondent Company;

The Complainant was unfairly selected for lay-off and redundancy.

The Respondent failed to engage with the Complainant at all regarding the prospect of redundancy, his selection or alternatives to redundancy that might exist.

Redundancy was used as a cloak to conceal the reasons for the Complainant’s dismissal.

Further the Respondent dismissed the Complainant in response to health and safety concerns regarding the availability of Personal Protective Equipment at the workplace.

In relation to the Unfair Dismissal complaint the Respondent, as set out above, gave no evidence as to why the dismissal was fair. In the absence of a defence by the Respondent and based on the Complainants unchallenged submission the burden of proof was not discharged and there is no alternative open to the Adjudicator but to deem the termination of the employment as an Unfair Dismissal per the Act and the consequence is, accordance with 7 (1) of the Act the only issue then for decision then is the appropriate remedy.

it is relevant to state the above grounds that the Complainant was dismissed for and particularly for including making a protected disclosure.  The Complainant Representative has included this as a ground for the Complainants dismissal to justify their claim for the Adjudicator to include increasing the compensation from 2 years maximum compensation to 2.5 times that per section 7 (1A) of the 2015 Act (as quoted above) allows. It was submitted that the Complainant brought matters to the attention of his employer regarding the absence of, and need for, proper protective equipment for employees during the Covid-19 pandemic. It was also submitted that the disclosures made by the Complainant are protected disclosures for the purposes of the 2014 Act. It was submitted that the various disclosures made by the Complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5. In the absence of any evidence to the contrary, I deem the relevant information provided by the Complainant to the Respondent regarding the safety issues to be a protected disclosure.

The Complainant submitted that his loss was 24,840 Euros as a result of his dismissal. He did not provide detail of any redundancy payment he received. He provided details of temporary work he engaged in, retraining and reskilling and new employment details commencing in June 2021 where he remains in employment. The Complainant also submitted details from a Quantity Surveyor that the cost of materials rose in the intervening period by 72,000 Euros plus Vat due to the delay in commencing building a new house. The Complainant had planned to commence in March 2020 but had to delay the start due to his dismissal.  While evidence of the cost escalation was submitted no evidence of any commitment to commence building prior to the Complainants dismissal was submitted to the Hearing and therefore on that basis I have decided to exclude this element of loss from my Decision as I did not see enough evidence that it was “just and equitable” to include it. The Complainant is not suffering an ongoing loss in his new employment due to his retaining and reskilling and therefore there is no ongoing loss to be considered by the Adjudicator and while the Complainant now earns more than he did when employed by the Respondent, this is due to his own efforts and it would not be “just and equitable” to penalise the Complainant for his own efforts to find a slightly better paying job after his dismissal.

I find that the Complainant was unfairly dismissed and award him compensation of 24,840 Euros, less any amount he received as a Redundancy payment.

Unfair Dismissal