Complainant

Respondent

Parties

Anthony Murphy

Wexford PC Developments Limited

Representatives

Not represented

John Forde HR Advisory & Support

Act

Complaint Reference No.

Date of Receipt

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

CA-00043753-001

26/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043753-002

26/04/2021

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

CA-00043753-003

26/04/2021

Six people plus the owner, Mr Corrigan, are employed in the respondent’s business, which is a construction company.   One person is employed in administration and there is a foreman and four general operatives.  The complainant commenced working as a general operative on March 4th 2019.  He worked 19 hours a week, at €10.50 per hour, resulting in weekly wages of €204.70.  On January 21st 2021, almost 23 months after he started, the complainant’s employment was terminated due to redundancy.  He claims that he was unfairly selected for redundancy and that that his dismissal was unfair.  He also claims that he was let go over the phone and that he got no notice.

On behalf of the respondent, Mr Forde provided a submission in advance of the hearing of this complaint.  He said that, for personal reasons, the complainant was available for work for 19 hours a week.  When he joined the company, the complainant was issued with a statement of his terms and conditions of employment and an employee handbook.  A copy of both documents was provided.

In December 2020, Covid-19 level 5 restrictions were re-introduced in Ireland, with the effect that, from close of business on December 30th 2020 until January 31st 2021, all businesses were closed, with some very specific exceptions.  The level 5 restrictions were then extended until April 12th 2021. 

On January 6th 2021, the government announced that all non-essential construction was to cease from 6.00pm on Friday, January 8th.  From Monday, January 11th, all the respondent’s employees, including Mr Murphy, were laid off.  They claimed the pandemic unemployment payment (PUP).  The respondent was engaged in some essential construction projects that were included in the list of exceptions, so a limited amount of work remained to be done during the period of thelLevel 5 restrictions between January and April 2020. 

Providing the background to the redundancy of the complainant, Mr Forde explained that the respondent has two vans that are used to bring workers and tools to the construction sites.  Each van was generally used to transport two people, and one employee used his own transport.  Mr Forde provided the following schedule of vehicle occupancy:

Van 1:  One foreman and one general operative = two employees

Van 2:  One general operative driver and one general operative = two employees

The administrator did not travel to the construction sites and one general operative used his own car.  This accounts for six employees.

Mr Forde reminded me of the Garda checkpoints that were in place to ensure compliance with the level 5 lockdown.  He said that the respondent had to take corrective action to comply with the restrictions, including letters of conformity, social distancing and mask-wearing.  The respondent decided to reduce each vehicle to single occupancy, resulting in a reduction in the workforce from six to three employees.  The owner then decided to retain employees who could drive, so that they could fill in for anyone who might be absent.  As a result, there was just one employee made redundant, and this was the complainant.

Mr Forde referred to the employee handbook, which provides that, where redundancies are necessary, all other things being equal, selection will be on the basis of service.  The selection process identified the requirement for the administration person to be retained, and four employees who would be required to drive the two vans, based on two drivers plus two back-up drivers.  The two back-up drivers remained on the PUP but were available to work if one or both of the first two drivers were absent.  One of these employees had shorter service than the complainant, but he used his own vehicle to drive to work.

The complainant did not have accounts experience and he did not drive to work and was therefore not able to get himself to work.  As this was the selection process used to determine who was to be made redundant, the complainant was notified that his employment would terminate on January 21st 2021.  As he had less than two years of service, he was not entitled to a redundancy payment.  As set out in the employee handbook, Mr Forde said that the complainant could have appealed against the decision to make his job redundant, but he did not do so.

On February 3rd 2021, the complainant wrote to the owner, Mr Corrigan, asking for an explanation for making his job redundant.  Mr Corrigan replied on February 18th.  He explained that the complainant’s employment was terminated “primarily as a result of the drop off in work and the rules introduced by the government-imposed Level 5 Covid-19 restrictions.”

Evidence of the Owner, Mr Corrigan

Mr Corrigan said that, before the level 5 restrictions were imposed, starting into 2021, the company had projects that would keep them occupied until the end of March and on into the summer.  He said that two contracts that he expected to be working on were suspended.  He had one house extension for a person with a disability and a project that he was working on for the HSE was finished on January 31st 2021.  The company expected to have work on a riding arena, but all the work was contracted out.  Mr Corrigan said that the company has to maintain insurance to keep employees on the books and that he had to make decisions based on the work that was coming up.

Cross-examining of Mr Corrigan

The complainant asked Mr Corrigan how he went from letting him go to keeping another person with shorter service.  Mr Corrigan replied that the Covid-19 restrictions meant that they could only have one person in a van and that the complainant didn’t drive.

The complainant said that he had no problem getting to work and that the issue of transport was never discussed with him.  He said that he was never asked how he would get to work and he said that he could have arranged a lift.

Summary of the Respondent’s Case

Concluding the respondent’s case, Mr Forde submitted that the complainant’s employment was terminated “as a result of redundancy brought about by the restructuring and reorganisation required as a result of external matters.”  He argued that, in accordance with section 6(4) of the Unfair Dismissals Act, the complainant was selected fairly, as there were substantial grounds justifying his dismissal.  He said that the grounds were qualification and redundancy, which satisfy the criteria to make the termination of the complainant’s employment not unfair.

In his complaint form which he submitted to the WRC, the complainant said that the explanation he was given for the redundancy of his job was that his employer had lost work and that he did not drive.  He said that the owner told him that others would also be let go and that the decision to select him was based on the criterion of “last in, first out.”  However, the complainant said that the owner’s brother started after him and another man was employed by the respondent for only a couple of months when the complainant was dismissed. 

The complainant said that there is nothing in his contract of employment that provides that he is required to be able to drive.  He said that coming to work was never a problem and he was never asked to sort out a lift.

Setting out the details of his complaint on the form, the complainant said that, on January 21st 2021, he got a phone call from the owner, Mr Corrigan.  He said that Mr Corrigan explained that he had lost work due to the pandemic and that he would have to let him go.  The complainant said that Mr Corrigan said that he “would not be the only one to get a phone call” because two other employees had started after him.  The complainant said that Mr Corrigan said that he would look at the situation again in a few months and he wished him well in the future.

Following this phone call, the complainant said that he was talking to another employee who started a good while after him and this employee was still working.  The complainant said that he didn’t know what to make of this, and he knew that the owner’s brother was also still working, although he also started after him.  He said that he contacted the Citizens Information Centre and he then sent two letters to Mr Corrigan, one seeking an explanation for the termination of his employment, and the second letter seeking access to data related to him held by the respondent.

The complainant said that he feels that he has been dismissed unfairly, because he was dismissed over the phone and not in person.  He said that he thinks his dismissal was unfair because he doesn’t drive.  He said that he was never asked to find his way to work, and that his contract of employment makes no mention of the need for him to drive.  He said that got no notice of the termination of his employment.

At the hearing, the complainant relied on his submission and he wasn’t cross-examined.

The Relevant Law

This complaint falls to be considered under section 6 of the Unfair Dismissals Act 1977 – 2015 (“the UD Act”).  Section 6(1) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to provide evidence of the “substantial ground justifying the dismissal” of the complainant.  At the hearing, Mr Forde submitted that the complainant was dismissed because he was not qualified to drive and his job was redundant because of the changes imposed on the company by Covid-19 level 5 restrictions.

Section 6(3) of the UD Act provides that a dismissal will be unfair where an employer acts unfairly in the selection of an employee for redundancy or, where an agreed procedure for implementing redundancies is not followed:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

“(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

“(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

“then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

“Subsection (2)” referred to here is subsection 6(2) which addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant in this case.

In the case under consideration, “the circumstances constituting the redundancy” was the Level 5 restrictions between January and April 2021, the curtailment of the work that the respondent had lined up and the requirement for one person to travel in a vehicle.

Section 6(4) of the UD Act recognises the right of an employer to dismiss an employee due to redundancy: 

 “…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

(c) the redundancy of the employee.”

Subsections (a), (b) and (d) of this section are not relevant to this complaint.

We know from section 6(3) that this right is predicated on an obligation to select employees for redundancy based on fairness, and to adhere to an agreed procedure or a code of practice regarding dismissals.  Section 6(7) expands further on the issue of reasonableness and provides that, in considering a complaint of unfair dismissal, I may have regard,

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and 

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

In the case of this former employee, he was not a member of a trade union.  Mr Forde submitted a copy of the respondent’s employee handbook which contained a procedure that, all things being equal, in the event of the need for redundancies, employees would be selected based on their service.  The respondent’s case is that, while the complainant was not the employee with the shortest service, his inability to drive was the factor that determined that he was the only employee made redundant in January 2021.

Section 7(2) of the Redundancy Payments Acts 1967 – 2014 (“the RP Act”) sets out five definitions of redundancy:

“…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.”

No argument was submitted at the hearing to specify which definition applies to the redundancy of the complainant.  The letter sent to him by Mr Corrigan on February 18th 2021 states that his employment was terminated because of the “drop off in work and the rules introduced by the government imposed Level 5 Covid-19 restrictions.”  This would imply that the reduction in the availability of work and the requirement for just one person to travel in a company vehicle and the fact that the complainant didn’t drive, were the reasons he was selected for redundancy.   It would appear therefore, that his dismissal falls within the definition of redundancy set out at section 7(2)(b) and (d) above, but I will examine this now.

Was the Complainant’s Job Redundant?

The decision of the Labour Court in the case of Component Distributors (CD Ireland) Limited v Brigid (Beatrice) Burns[1] is a useful starting point for consideration of how the respondent dealt with this employee.  Finding that Ms Burns was unfairly dismissed, the Tribunal referred to the right of an employer to restructure its business as “not unfettered” and balanced against the requirement to act reasonably in relation to a job-holder who is at risk of redundancy. 

Considering the restrictions imposed on the construction sector in the early months of January 2021, it is reasonable to assume that there was a general down-turn in the respondent’s business.  For most companies not involved in work of an essential nature, employees were laid off.  The complainant himself was laid off from January 1st 2021 and he claimed the PUP, but he expected to be back at work when the restrictions were lifted.

The objective of the PUP was to support employees who were laid off during the pandemic and to maintain their relationship with their employer so that they could resume working when the restrictions were lifted.  It was never established that the complainant had a difficulty getting to work, but even this was the case, he could have been left on lay-off until the restrictions were lifted.  Many employees, for example, in the hospitality sector, were laid off for more than a year, and they returned to work when their places of employment opened up again.  In 2021 and up to the present, there is an abundance of work available in the construction sector and I find that there was no reason why the complainant was not kept as an employee on lay-off until the level 5 restrictions were lifted and when two people could travel together in a company vehicle.

When he was recruited in March 2019, the complainant was not required to drive, and until he was laid off in January 2021, there was no discussion about the need to be able to drive.  This only because a “qualification” in February 2021.  When he was informed that he was being made redundant, the reason given was that the respondent had lost work and there was no discussion about the fact that he didn’t drive.  Having considered the respondent’s written submission and the evidence of Mr Corrigan at the hearing, I am not convinced that the complainant was let go because of the Covid-19 restrictions and the fact that he didn’t drive.

Findings

Having examined the evidence presented by the respondent, I find that none of the definitions at section 7(2)(a) – (e) of the RP Act apply to the circumstances in the company in January 2021.  I accept that there may have been a general down-turn in the work available between January and April 2021; however, this was always going to be temporary.  The complainant could have been left on lay-off until the restrictions were lifted, and then brought back to work.  I am satisfied that his job was not redundant and that the termination of his employment on the grounds of redundancy was unfair.

Having reached this finding, I wish to address the respondent’s failure to observe any of the procedural requirements normally followed when an employee is being made redundant.  Without any warning or indication that his job was at risk, on January 21st 2021, the owner phoned the complainant and told him that he was dismissed.  The complainant’s recollection is that the reason given by the owner was that there was a down-turn in the work available.  A second explanation, the “one employee per vehicle” policy was introduced a month later, in the letter from the owner on February 18th 2021.  It seems to me that this second explanation was an afterthought.  Any reasonable employer faced with a concern about an employee’s ability to get to work would have simply had a conversation about the problem.  The complainant said that the issue was not discussed with him, and that he could easily have got a lift.

The purpose of a redundancy procedure is twofold.  Firstly, it is to ensure that an employee at risk of losing his job has an opportunity to be represented and to be informed of the reason that he might be made redundant.  Secondly, its purpose is to give the employer and the employee space and time to consider an alternative to redundancy.  Clearly, the alternative to making the complainant redundant was to leave him on lay-off until the restrictions ended, although, as I have already indicated, he could even have avoided this predicament by getting a lift to work.

Having side-stepped any procedural obligations, it seems a bit one-sided for Mr Forde to assert at the hearing that the complainant didn’t appeal against his dismissal.  In any event, I am satisfied that the letter that the complainant sent to Mr Corrigan on February 4th 2021 made his position abundantly clear and left it open to the respondent to re-consider.

Conclusion

Having considered the evidence of both sides, I find that the complainant’s job was not redundant in January 2021 and that he was dismissed for some other reason that did not emerge at the hearing.  The failure of the respondent to follow any aspect of a standard dismissal procedure was disrespectful and unfair.  In contravention of section 6(3) of the UD Act, I find that the dismissal of the complainant was substantively and procedurally unfair.

I have decided that this complaint is well founded.  No evidence was submitted that the complainant made any contribution to his dismissal and, in terms of mitigation of his losses, he said that he found another job about two months after his employment with the respondent ended.  I decide therefore, that the respondent is to pay the complainant €2,700 in compensation, equivalent to 13 weeks’ gross pay.  As this compensation is in the form of loss of earnings, it is subject to the normal statutory deductions.

On his complaint form, the complainant said that he got no notice of the termination of his employment.

In his submission provided in advance of the hearing, Mr Forde set out the payments to the complainant in week 5 of 2021, ending on January 29th 2021.   The complainant’s last day at work was January 8th 2021, when he was laid off.  On January 15th, he was paid for hours he worked up to that day (week ending on Sunday, January 10th). 

On January 29th, the complainant was paid €315.90, comprising €116.83 in holiday pay and €200.07 for one week’s pay in lieu of notice.  In accordance with the provision in the complainant’s contract of employment, it is the respondent’s case that the complainant was paid a week’s pay in lieu of notice.

In a letter issued to the complainant on January 26th 2021, the owner, Mr Corrigan, confirmed that his employment ended on January 21st.  This is the day on which Mr Corrigan phoned the complainant to tell him that his job was redundant.  It is apparent therefore, that the complainant got no notice of the termination of his employment, as it ended on that day.

From the payroll information provided at the hearing by the respondent, it is apparent that, on January 29th 2021, the complainant was paid one week’s pay in lieu of notice and that his was included with his outstanding holiday pay.

As the complainant received one week’s pay in lieu of notice, I decide that this complaint is not well founded.

Under the heading of the Payment of Wages Act, the complainant submitted that he did not receive pay in lieu of notice.

The respondent’s position regarding the notice claim has been considered above.

This complaint has been considered and decided upon under the Minimum Notice and Terms of Employment Act as complaint reference CA-00043753-002 above.

I decide that this complaint is not well founded.

Redundancy, reason for dismissal, unfair dismissal, minimum notice