Complainant

Respondent

Parties

James  King

Height For Hire Limited

Representatives

Mairead Deevey, BL

 David Browe

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-00040908-001

10/11/2020

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

CA-00040908-002

10/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00040908-003

10/11/2020

The Complainant contends he was unfairly dismissed by reason of redundancy which he contends is not valid and was used to dismiss him.  He further contends that payment of commission/bonus was unlawfully withheld in breach of the Payment of Wages Act 1991.  The complaint under the Safety, Health and Welfare at Work Act 2005 was withdrawn at hearing.

The Complainant was employed as Area Sales Manager from 5th January 2015 to 29th September 2020.   The Respondent employed approximately eight Area Sales Managers (‘ASMs’).

In 2018, the Complainant met with Ms A Operations Manager regarding

the Respondent’s failure to discharge a discretionary bonus to him. Therein, in

response to this complaint, Ms A stated that the Complainant was not going to

be paid the bonus as he had failed to follow a process in respect of the purchase of

safety boots. In response to the Complainant’s objection to this, Ms A stated that

the Complainant’s role would be readvertised at a future date and he would have

to reapply for his job. The Complainant maintains that, from that day forward,

Ms A took a personal dislike to him and another work colleague. This issue remained unresolved and, thereafter, at all review meetings,   the Complainant repeatedly raised this issue.

In July and August 2020 there was an issue with a mobile phone, which had to be replaced twice and an employee of the Respondent berated the Complainant over the issue.

On the 24th August 2020, Mr B, HR Manager of the Respondent,

telephoned the Complainant. The Respondent failed to give the Complainant any

notice or forewarning whatsoever as to this call or the purpose of same. Therein,

Mr B advised the Complainant that his job was at risk of redundancy. The

Complainant was immediately concerned with the veracity of the Respondent’s

justification for such a redundancy as, in his role, he had daily calls with the two main managers of the Respondent regarding sales and turnover. Both had always said that the

Complainant’s figures were good and there had never been any concerns raised

with him regarding same. The Complainant enquired into what turnover needed

to be in order to so support two employees and prevent the Complainant being

made redundant. In response, Mr B stated that he had no idea and was not

given such figures. The Complainant was stunned that Mr B was not aware

of such figures, had not been given such information, had not enquired about such

information himself and expected the Complainant to defend his ongoing

employment and suggest viable alternatives to his redundancy in the absence of

such information. Mr B stated that there was a pool of people from which the

redundancies across the Respondent would be drawn and that these redundancies

would occur regardless of the alternatives that the Complainant put forward. Mr

B stated that, because of this, there was no formal way in which such

alternatives would be assessed. The Complainant, suspecting that Mr B was

indicating to him that his dismissal was a fait accompli asked Mr B if the

decision for his position to be made redundant had already, in fact, been made and

was final. In response, Mr B stated definitively: “off the record yes; but

you’ve been made redundant before haven’t you?” The Complainant was

shocked that Mr B had admitted that it had already been decided that he was

to be dismissed. He was also shocked that it was evident that Mr B was of

the view that the Complainant’s previous redundancy earlier in his employment

history, an entirely irrelevant matter to any current potential redundancy situation

in the Respondent, carried weight. Mr B then stated that this ‘off the record’

decision for the Complainant’s position to be made redundant had been reached

due to the Complainant not having a truck license, meaning he would be the ASM

to be made redundant. The Complainant was shocked that this could be the

primary criteria for this decision in circumstances where he had requested training

for a truck license and that this had been agreed to by the Respondent but

subsequently delayed.

The Complainant maintains that, even prior to informing him of a possible

redundancy situation, the Respondent had, as a matter of fact, already reached the

decision, ‘off the record’, that he was to be made redundant. This was in

circumstances where this decision had been made: without there being a genuine

redundancy situation; without previously having put the Complainant on notice

that his position was at risk of being made redundant; without previously having

informed the Complainant of how the process would progress; without previously

having entered into an appropriate period of consultation; without previously

having informed the Complainant of his right to be represented; without previously

providing the Complainant with the opportunity to review relevant objective

evidence, accounts or reports providing the justification for any such alleged

redundancy situation and the opportunity to make representations in respect of

same; without providing the Complainant with any labour matrix or set of criteria

as how the Respondent was to select which of the ASMs, if any, were to be made

redundant and without providing the Complainant with the opportunity to make

representations in respect of same; without informing the Complainant of any other

employee whose position may be at risk of being made redundant; and without

previously exploring alternatives to redundancy and giving the Complainant the

opportunity to make representations in respect of same.

By letter dated 24th August 2020, Mr B wrote to the Complainant stating that,

further to their earlier conversation, in light of the current and predicted business

environment, the Respondent was conducting a review of its business and cost

reductions and that “some roles may be required to change or may no longer be

required”. Mr B stated that the Complainant’s position in the Respondent

was potentially at risk of redundancy, but that the Respondent was looking at ways

of avoiding this situation. Mr B asked the Complainant to put forward

possible suggestions to avoid redundancy by 5.00 pm on 25 August 2020.

The Complainant maintains that the ludicrously short timeframe given to the

Complainant to put forward such suggestions, in the absence of any objective

evidence, accounts or reports providing justification for an alleged redundancy

situation having been provided to the Complainant, betrays the fact that the matter

was a fait accompli.

By email dated 25th August 2020, the Complainant wrote to Mr B regarding

their discussion on 24th August 2020 and Mr B’s request for the Complainant

to present cost cutting alternatives to redundancy. The Complainant stated: “I

would be grateful if you could furnish me with the current income and

expenditure figures for the depot as it is very difficult to see where the costs

should be.” Despite this absence of any such information, the

Complainant went on to outline his alternatives to redundancy as follows:

‘Option 1

Sit down and evaluate the costs and savings options for the depot with all the

figures transparent to both parties

Option 2

I am based in the depot full time now with full access to a PC I know from

talking to other colleagues that the admin side of the day to day running is

stretched I am happy to have some of this work load passed on to me instead of

a none selling person (with no additional monies to me obviously)

Option 3

Earlier in the year we had a meeting and I was asked

would I like to cover a bigger area as you can see by the email I sent to you

after that meeting that was something I was very keen to do covid happened so

that was put on hold obviously but this could be an option … savings of over €40,000..

Option 4

 … increased prices 90% of customers in order to increase the revenue brought to the depot

throughout each depot in the country by being the point of contact ..

Option 5 and final option

…outside haulage company … possible saving of €40,000 plus (drivers wages cost of

running the truck etc) if we went back to this option we could also get myself

the C licence in order for me to do deliveries at a later stage..

The Complainant maintains that, despite explicitly requesting documentary

evidence in relation to the basis for the alleged redundancy situation and despite

explicitly requesting a transparent sit down to discuss the costs and savings

options, the Respondent failed to ever revert to him with

the income and expenditure figures for the depot or arrange a sit down meeting

and transparent discussion as requested prior to the Complainant’s dismissal. The

Complainant maintains that same further evidences the fact that his dismissal was

a fait accompli.

On 27th August 2020, Mr B called the Complainant on his mobile phone.

Therein, Mr B stated that the alternatives presented by the Complainant were

not viable and that the redundancies, including his own, were going ahead. The

Complainant submits that when challenged by him, Mr B informed him that

the Respondent had deep pockets and would make things very difficult for him if

he fought them.

By letter dated 27th August 2020, Mr B wrote to the Complainant regarding

his alternatives to redundancy suggested in his email of 25th August 2020. Therein,

Mr B stated that the alternative of the Complainant performing administrative

duties was not appropriate as there was no such vacancy and as same would not be

economical. Mr B stated that the alternatives of the addition of duties to the Complainant’s portfolio were not viable.

Mr B stated that the Respondent intended to go ahead with the redundancy for

the reasons outlined.

The Complainant maintains that Mr B failed to engage with the

Complainant’s alternative options whatsoever, namely the Complainant’s

suggestion that they have a transparent sit-down discussion about the costs and

savings options. The Respondent has never provided any

explanation whatsoever for its failure to engage in this alternative. Further, despite

the Complainant’s explicit request for information as to the alleged justification for

his position being made redundant, the Respondent failed to provide him with any

such information or any information evidencing why alternative options  

The Complainant maintains that same

evidences the fact that the Complainant’s dismissal was a fait accompli.

By letter dated 27th August 2020, Mr B wrote to the Complainant, confirming

the three vacancies in the Respondent that were open for application until 5.00 pm

that evening,  and clearly none of these were viable alternatives.

The Complainant maintains that the Respondent understood that all three of these

options were inappropriate, with two requiring the Complainant (who has a wife

and four children) to emigrate and one requiring him to complete a 4-hour daily

commute and came with a pay decrease. Further, a

fourth vacancy (communicated by Mr B to the Complainant during their

phone call) involving the Complainant driving a truck, was not possible as the

Complainant did not have a truck license, a matter well within the knowledge of

the Respondent. The Complainant maintains that same, along with the again

ludicrously short arbitrarily imposed deadline, betrays the fact that the

Complainant’s dismissal was a fait accompli.

By second letter that same day (dated 27th August 2020) Mr B wrote to the

Complainant regarding a “FINAL NOTIFICATION OF REDUNDANCY”.

Therein, Mr B stated that the redundancy consultation had concluded, that

the Complainant had indicated that he was not interested in current vacancies in

the Respondent and “as you are the only person involved, there is no selection

criteria”. Mr B stated that all ways of avoiding redundancy and all

alternatives had been considered and explored but were not possible and that

compulsory redundancy was necessary. Mr B stated that the Complainant’s

employment would be terminated on 29th September 2020.  

The Complainant maintains that Mr B retrospectively sought to justify its

failure to utilise a labour matrix or set of criteria in selecting which of the eight

ASMs was to be made redundant by asserting that as the Complainant was “the

only person involved, there is no selection criteria”. This is entirely factually

incorrect. In addition to the Complainant being made redundant by the Respondent

at this time, Mr C was also made redundant by the Respondent leaving some

seven other ASMs in the Respondent’s organisation.

Shortly thereafter, it came to the Complainant’s attention that the Respondent had

already assigned one of the Complainant’s colleagues and fellow ASM, Mr

D, to take over the Complainant’s role. The Complainant maintains that same demonstrates the Respondent having had already

decided that the Complainant was to be made redundant and having utilised the

Complainant’s redundancy to avoid making Mr D redundant, thereby

undermining its assertion that the Complainant was the only person involved in the

redundancy situation.  An appeal meeting was held on 16th October 2020 and the result communicated was ‘I have fully considered all of the representations that you have

made and I carried out further investigations where I considered it necessary. My

decision is to uphold the original redundancy dismissal and to conclude your

appeal is unsuccessful.’

By email dated 28th October 2020, Mr B wrote to the Complainant outlining

details of the final payments to be made to him. Therein, Mr B stated that, in

addition to his statutory redundancy payment, annual leave entitlement and arrears,

the Complainant was to be paid €500 in respect of outstanding commission. In this

regard, Mr B stated: ‘We have reviewed the targets and results for Q4 (Jan-

Feb-Mar-2020). You achieved your personal target but unfortunately, missed the

depot target by a considerable amount. You are entitled to receive 50% of the

possible commission of €1000.’

The Complainant maintains that, as of the date of his dismissal, he was, in fact,

owed €2,000 in commission by the Respondent. As such, the Complainant maintains that the Respondent made an unlawful deduction to his wages in the

value of €1,500.

The Complainant has made all reasonable efforts to mitigate his losses in this

matter. On or about 4th November 2020, the Complainant secured new

employment.

LEGAL BASIS FOR CLAIM

The Unfair Dismissals Acts

In the present case it is submitted that the selection of the Complainant for

redundancy was both procedurally and substantively unfair. Section 6(1) of the

Unfair Dismissals Act, 1977 creates a presumption that a dismissal is unfair for the

purposes of the Act. It states:

“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(3) addresses this presumption in the context of very specific

redundancies, it outlines:

“(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 [as amended by the Industrial Relations Act

1990], 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 cases where the above section does not apply, such as the present case, the

Employment Appeals Tribunal has consistently held that the general provisions of

section 6 apply. In the case of Boucher v. Irish Productivity Centre [1994] ELR

205, the Employment Appeals Tribunal highlighted this:

“In these circumstances and in the absence of any guidelines or precedent the

employer is obliged to act fairly in relation to the criteria applicable in

selecting who is to go and who is to stay and to apply such criteria fairly to

each individual in order to bring about a fair assessment and decision. The

assessment is to apply to all in the group and not just to some.”

Burden of proof

The burden of proof under the Unfair Dismissals Act 1977, is firmly placed on the

employer to prove that the dismissal was fair, section 6(6) states:

“(6) In determining for the purposes of this Act whether the dismissal of an

employee was an unfair dismissal or not, it shall be for the employer to show

that the dismissal resulted wholly or mainly from one or more of the matters

specified in subsection (4) of this section or that there were other substantial

grounds justifying the dismissal.”

In the case of JVC Europe Ltd v. Panisi [2011] IEHC 279 the Charleton J.

emphasised that this burden of proof is placed on an employer in an alleged

redundancy situation. He stated:

“A dismissal, however, can be disguised as redundancy; that is not lawful.

Upon dismissal an employer can simply say that the employee was not

dismissed for a reason specific to that person but that, instead, his or her

services were no longer required, pointing to apparently genuine reasons for

dispensing with the services of the employee. In all cases of dismissal, whether

by reason of redundancy or for substantial grounds justifying dismissal, the

burden of proof rests on the employer to demonstrate that the termination of

employment came within a lawful reason. In cases of misconduct, a fair

procedure must be followed whereby an employee is given an entitlement to

explain what otherwise might amount to a finding of real seriousness against

his or her character. In an unfair dismissal claim, where the answer is asserted

to be redundancy, the employer bears the burden of establishing redundancy

and of showing which kind of redundancy is apposite. Without that

requirement, vagueness would replace the precision necessary to ensure the

upholding of employee rights. Redundancy is impersonal. Instead, it must

result from, as s.7(2) of the Redundancy Payments Act 1967, as amended,

provides, "reasons not related to the employee concerned." Redundancy,

cannot, therefore be used as cloak for the weeding out of those employees who

are regarded as less competent than others or who appear to have health or

age related issues. If that is the reason for letting an employee go, then it is

not a redundancy, but a dismissal.”

Therefore, the employer has the burden of proving that there was a genuine

redundancy situation and that the complainant was fairly selected for redundancy.

Section 7(2) of the Redundancy Payment Act 1967, as amended, outlines the

situations where a genuine redundancy will be held to exist. It states:

“(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—

(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 Complainant worked as an ASM for over five years with the Respondent. The

Complainant was highly educated and skilled with significant experience both

before being employed by the Respondent and whilst employed by the Respondent.

The Complainant demonstrated a high degree of flexibility, completing a broad

range of tasks and duties in his role. The Complainant submits that at no time did

the Respondent demonstrate, either during the narrative or now in its submissions

before the WRC, that there was a genuine redundancy situation occurring. Rather,

only vague references were made to a cost saving review in light of the implications

arising from Covid-19 that were never explained properly or at all. Further, and

perhaps most bizarrely, at no stage during the narrative has the Respondent

explained how it came to identify the Complainant’s position as being appropriate

to be at risk of redundancy, or ultimately appropriate to be made redundant. No

reference whatsoever is made to any objective facts, matrix, criteria, or formal

evaluation to determine that it was the Complainant’s position that should be made

redundant.

The Complainant respectfully submits that there was not a genuine redundancy

situation and puts the Respondent on full proof regarding same.

Fair procedures

It is further submitted that if there was a genuine redundancy situation, which is

denied, the Respondent failed to follow fair procedures in the way in which this

redundancy was enforced. The principles to apply in considering whether a

redundancy was fair were highlighted in the case of Boucher v. Irish Productivity

Centre [1994] ELR 205 and have been summarised as follow:

“Where section 6(3)(b) of the 1977 Act did not apply on the basis that there is

no history of compulsory redundancy nor any union/management agreement

or contractual provisions to identify a method of selection for redundancy, an

employer is obliged to act fairly in relation to the criteria to be applied in

making such a selection and to apply such criteria fairly to each individual in

order to achieve a fair assessment and decision. The employer's selection for

redundancy may be reviewed under section 6(1) in the absence of section

6(3)(b) being applicable.

The onus of proof is on the employer to establish that he acted fairly in the

selection of an employee for redundancy. Where assessments are used as a

means of selection the onus is on the employer to establish that reasonable

criteria are applied to all employees and that the selection of an individual

employee is fairly made in the context of those criteria.

The fairness or unfairness of dismissal is to be judged by the objective

standard of the way in which a reasonable employer in those circumstances in

that line of business and at that time would have behaved. This standard of

fairness is applied to both the procedural and substantive aspect of the

employer's decision.

Where selection for redundancy involves consideration of employees'

contribution and versatility to the respondent those in the group likely to be

dismissed should be made aware that such assessment was being made and

they should be given an opportunity to give their views which should be

considered. To be considered fair the assessment should have the

characteristics of an enquiry.

This procedure could have been followed even within the restricted period

available to the respondent for making a selection. The denial by the

respondent of any opportunity being given to the claimants to take part in such

enquiry is in breach of natural justice which renders their dismissals unfair.”

A comprehensive summary of the principles to be considered in an assessment as

to whether or not a selection for redundancy has been substantially and/or

procedurally fair, is to be found in the decision of Browne-Wilkinson J. in the

Employment Appeals Tribunal of England and Wales in Williams v. CompAir

[1982] 1 ICR 156 (at p. 162):

“1. The employer will seek to give as much warning as possible of impending

redundancies so as to enable the union and employees who may be affected to

take early steps to inform themselves of the relevant facts, consider possible

alternative solutions and, if necessary, find alternative employment in the

undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the

desired management result can be achieved fairly and with as little hardship

to the employees as possible. In particular, the employer will seek to agree

with the union the criteria to be applied in selecting the employees to be made

redundant. When a selection has been made, the employer will consider with

the union whether the selection has been made in accordance with those

criteria.

3. Whether or not an agreement as to the criteria to be adopted has been

agreed with the union, the employer will seek to establish criteria for selection

which so far as possible do not depend solely upon the opinion of the person

making the selection but can be objectively checked against such things as

attendance record, efficiency at the job, experience, or length of serviceThe employer will seek to ensure that the selection is made fairly in

accordance with these criteria and will consider any representations the union

may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he

could offer him alternative employment.

The lay members stress that not all these factors are present in every case

since circumstances may prevent one or more of them being given effect to.

But the lay members would expect these principles to be departed from only

where some good reason is shown to justify such departure. The basic

approach is that, in the unfortunate circumstances that necessarily attend

redundancies, as much as is reasonably possible should be done to mitigate

the impact on the work force and to satisfy them that the selection has been

made fairly and not on the basis of personal whim.”

It is submitted that none of the above procedures were followed in the present case.

It is submitted that the Respondent had, as a matter of fact, already reached the

decision, ‘off the record’, that the Complainant was to be made redundant: without

there being a genuine redundancy situation; without previously having put the

Complainant on notice that his position was at risk of being made redundant;

without previously having informed the Complainant of how the process would

progress; without previously having entered into an appropriate period of

consultation; without previously having informed the Complainant of his right to

be represented; without previously providing the Complainant with the opportunity

to review relevant objective evidence, accounts or reports providing the

justification for any such alleged redundancy situation and the opportunity to make

representations in respect of same; without providing the Complainant with any

labour matrix or set of criteria as how the Respondent was to select which of the

ASMs, if any, were to be made redundant and without providing the Complainant

with the opportunity to make representations in respect of same; without informing

the Complainant of any other employee whose position may be at risk of being

made redundant; and without previously exploring alternatives to redundancy and

giving the Complainant the opportunity to make representations in respect of same.

Consideration of alternatives to redundancy

The Tribunal has consistently applied equivalent procedures in considering

whether a redundancy was fair. In particular, the Tribunal has found in genuine

redundancy situations that the procedures followed or lack thereof resulted in a

dismissal being an unfair dismissal. In the case of Liam Sheehan & John O'Brien

v. Vintners Federation of Ireland Limited [2009] 20 E.L.R 155 the Tribunal

highlighted the importance in giving consideration to alternative options to

redundancy.

“The Tribunal also regrets that the respondent did not give any genuine

consideration to the proposals put forward by one of the claimants (after

consultation with the other claimant and another employee) to resolve the

difficulties that the respondent was encountering.”

60. In the present case, no adequate consideration was given to an alternative to

redundancy. While being informed of the obligation upon him to suggest

alternatives to his redundancy, the Complainant was informed that ‘off the record’,

his dismissal had already been decided on and that, as such, there was no formal

mechanism to even assess his suggestions. This is borne out in the manner in which

the Respondent subsequently failed to even consider the Complainant’s alternative

Option 1 while providing no evidence for having actually assessed Options 2 to 5.

The legislation and case-law consistently outlines that redundancy is an impersonal

action. In the Panisi case, Charleton J. noted:

“Redundancy is not, however, a personal choice. It is, in essence, the external

or internal economic or technological reorienting of an enterprise whereby

the work of employees needs to be shed or to be carried out in an entirely

different manner. As such, redundancy is entirely impersonal.”

The Complainant was not provided with any skills matrix, report, facts, figures or

equivalent document outlining why he was selected for redundancy. The last in

first out policy was not applied. Education, skills, experience and flexibility were

not considered. The selection of the Complainant for redundancy on this basis is

unfair.

Speed of the process

The Complainant takes issue with the speed at which matters progressed. In the

case of Boucher v. Irish Productivity Centre [1994] ELR the Tribunal highlighted

the speed of progression as a cause for concern, it stated:

“This case has given the Tribunal much concern in that it is clear that Mr

Cahill, manager of the respondent company was under considerable pressure

to achieve redundancies within a short time.”

The Complainant was telephoned on 24 August 2020 wherein he was informed

that his position was at risk of redundancy but, off the record, his dismissal had

already been decided on. He was then informed to send his alternatives to

redundancy to Mr Browe by 25 August 2020, an entirely arbitrarily decided upon

deadline. Following the Complainant having done so, same were rejected out of

hand and the Complainant’s dismissal confirmed by 27 August 2020. The

Complainant submits that the shocking speed of this process in and of itself is

unfair and betrays his dismissal being a fait accompli but also points to the general

failure of the Respondent to ensure that fair procedures were upheld at all times.

The Payment of Wages Act, 1991

The Respondent unilaterally deducted €1,500 from the Complainant’s pay and sum

of money which was due and owing to him.

RELIEF SOUGHT / QUANTUM

It is submitted that, pursuant to the provisions of Section 7(1) of the Unfair

Dismissals Act, 1977, the Employment Appeals Tribunal is at large regarding the

redress for the unfair dismissal of the Complainant as the Tribunal “considers

appropriate having regard to all the circumstances”. In this regard, the

Complainant herein seeks compensation for financial loss attributable to that

dismissal pursuant to the provisions of Section 7(1)(c) of the Unfair Dismissals

Act, 1977.

In calculating the financial loss which is attributable to the Complainant’s

dismissal, Section 7(2) of the Unfair Dismissals Act, 1977 prescribes certain

matters which the Employment Appeals Tribunal shall have “regard” to:

i. 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,

ii. the extent (if any) to which the said financial loss was attributable to an action,

omission or conduct by or on behalf of the employee,

iii. the measures (if any) adopted by the employee or, as the case may be, his

failure to adopt measures, to mitigate the loss aforesaid,

iv. 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 subsection (1) of

section 14 of this Act or with the provisions of any code of practice relating to

procedures regarding dismissal approved of by the Minister,

v. the extent (if any) of the compliance or failure to comply by the employer, in

relation to the employee, with the said section 14, and

vi. the extent (if any) to which the conduct of the employee (whether by act or

omission) contributed to the dismissal.’

In the present case, the Complainant herein has made great efforts to mitigate his

losses, and applied for a number of alternative positions. The Complainant started

a new job as an area sales manager with another company on

04/11/2020 at a gross annual salary less than the salary he was earning in the Respondent’s employment.

The Complainant maintains that his loss is entirely attributable to the conduct of

the Respondent and is in no way attributable to his own conduct and as such seeks

compensation inclusive of him earning a lesser wage going into the future.

The Respondent is a wholly Irish owned, family business established in 1978.

On 30th March 2020, restrictions in workplaces due to Covid-19 came into effect in Ireland and only essential services were permitted in workplaces from that date. This caused a sharp decline in the company revenue which continued into April and May. Having lost almost 2 months revenue followed by a significant reduction in June, July & August, as a business we were forced to examine our costs across all departments and locations. As part of a survival plan we had to restructure the business and reduce the number of people employed by the company. The roles affected were in sales, service engineering, administration, hire desk, purchasing, transport and accounts. The Complainant’s role was not the only region and role effected by the redundancies.

It should also be noted that, unfortunately, we had to have further redundancies in March 2021 due to the COVID 19 pandemic. 

On top of his gross salary, the Complainant was entitled to receive a commission (not a bonus) of up to a further € 5,000 a year. € 4,000 of this was based on sales targets being achieved and the final € 1,000 based on competencies such as teamwork, communication, following processes, treating colleagues with respect etc. Neither payment is guaranteed.

We are not aware nor is there a record of the Complainant raising matters of Health & Safety on any occasion, never mind a number of occasions as claimed.

The Complainant listed 8 individuals who made up our sales team previously. Of this 8 listed, only 2 remain. 5 were made redundant and 1 retired. None of these people have been replaced.

We have a discretionary bonus scheme that is available but not guaranteed. It is based on work competencies such as flexibility, following procedures, treating colleagues with dignity and respect. This is a subjective award rather than a measured one.  The Complainant did not receive this particular bonus as he did not follow the process of requesting new boots, he ordered boots directly from Amazon himself that did not meet our specific criteria .  They were slip on shoes rather than boots, which did not offer any ankle protection and were not CE certified.

One of the Owners, Ms A gave evidence on affirmation about the issue of the discretionary bonus and its non-applicability to the Complainant.  The reasons included the fact that he did not follow procedure when ordering PPE in the form of protective boots which were not CE certified. 

The Complainant received a new mobile phone as a replacement for one he had broken. Approximately 2 weeks later he again requested a replacement as he had broken this one too.  This second replacement was not brand new as we had none in stock. It seems the Complainant had taken exception to this not having been a brand new model and claimed it was not cleaned and complained to the IT Manager,  who explained that the unit had been sanitised in the exact same way as the new model he had previously received and pointed out, that new or not, both phones were handled by the IT staff in order to programme and add applications. If this was an issue for him, he had the opportunity to raise a grievance through our formal procedure, but he didn’t do so.

Phone call 24/8/2020

The Complainant was advised that his role was at risk of redundancy due to the current and predicted business environment. He was informed that his depot was not generating enough revenue to sustain two full time employees.  He was informed that the ASM role was at risk of redundancy as the sales duties could be amalgamated within the remaining sales team without loss of revenue. He was also advised that we believed we would still need to have someone to deliver the machinery in the region and that was a factor in keeping the driver rather than the Complainant.

Revenue for the region was a factor taken into account, by the owners, in their review of the overall situation.

The Complainant was asked for suggestions as to ways to save the role, if this did not resolve the problem there would usually be a selection criteria, but as this was geographical decision, and he was the only ASM in the region, then there would be no selection criteria, and finally, he was advised that he could consider any vacancies we had available.

The Complainant said he felt the decision was made, and he wished it to be wrapped up as quickly as possible.  HR Manager Mr B gave evidence on affirmation.  He denied that he told the Complainant  ’off the record’ that the decision had already been made.

The financial situation of the company was not disclosed due to sensitive commercial reasons.  However, the Complainant was well aware of the extent of the problem.

The decision to make redundancies was based on a geographical decision.  Some areas could be combined and the work absorbed more easily.

The Complainant refers to the lack of a ‘C’ licence.  In his performance Management document in his growth and development section the HR Manager (B) stated that “possibly he should apply for his C Licence”. This was 5 years before he left the business and during those 5 years, he did not apply for or request this training so to claim that it is the Company’s fault he did not have this licence is not correct, especially as we have put approximately 10 other staff members, who showed their interest and followed the procedure, through this over the past number of years.

Options to avoid redundancy

The Complainant made 4 suggestions and 1 request for information. Each suggestion was discussed with Operations Manager Ms A and unfortunately, the decision for each of them was that they were not viable for the business, certainly not at this time.   The Complainant was informed of the reasons why, both verbally and in writing. The request for financial information was not provided as Ms A believed this was sensitive information she did not want out in the open at a time when the business was unsure of how things would develop in the future.   

CA-00040908-001

(6) Where—

(c)     ( a ) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(d)    ( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

(e)    then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In this case, I must decide if the €1,500 claimed by the Complainant can be described as ‘wages properly payable’ and if so, the non-payment can be treated as a deduction.

Unfair Dismissal, redundancy.