Complainant

Respondent

Parties

Sarah  McGovern

Niall Cusack Cusack Electrical/ Cusack Lighting/ Cusack Elecrical Ltd

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-00045152-001

12/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045152-002

12/07/2021

The Complainant commenced her employment as a Sales Assistant with the Respondent on 10 August 2018 and was paid €400 per week. She stated that she considered herself to be dismissed in July 2021 when the Respondent informed her that the company who was employing her was no longer trading.

The Complainant asserted that she had ongoing issues with the Respondent over the course of her employment, namely that she never received a written contract of employment, that her work roster was changed frequently, that she did not receive her statutory breaks and was not provided with her payslips despite making frequent requests for these.

She further stated that she was put on temporary lay off on 13 March 2020 as a result of the Covid lockdown, two weeks after she informed the Respondent of her pregnancy. She alleged that after this, she received an email from the Respondent on 20 March 2020 regarding how to apply for the Covid payment. By chance on the same day, her niece had sent her a screenshot of an advert on a job website which came as a major shock to the Complainant as it appeared to be an advert for her job. She stated that she sent it on to the Respondent and asked him to clarify why he was looking for a new staff member rather than allowing her to come back to work but he assured her that he was not replacing her.

On 24 May 2020, the Respondent informed the Complainant that he had hired someone to look after the website and would have to see how he could work her hours and would be in contact the following week. He did not make contact however and the Complainant messaged him again on both 2 and 13 June 2020 asking for clarification, to which the Respondent replied that he would let her know the following week. In the meantime, the Complainant was required to apply for her maternity leave and she called out to the store to ask the Respondent to complete and sign his part of the form in order for her to receive her maternity benefit. The Respondent was not in the store however and the Complainant stated that she was very surprised to find a new employee performing her day to day tasks.

She messaged the Respondent on 16 July 2020 and requested that her maternity form be returned in order to make her application. He informed her on 23 July 2020 that the form had been sent in to the welfare office. When she inquired about returning to work, he did not reply. She stated that she heard nothing for nearly 6 months after this and he did not inquire whether she had had her baby in September or how she was.

She stated that her maternity benefit was cut off on 26 December 2020 and upon investigation with the welfare office, it was revealed that the Respondent had put an incorrect date for her maternity end date, stating that it was 26 December 2020 rather than 26 February 2021. As a result, she was without an income for almost 3 weeks because it took until 21 January 2021 for the Respondent to finally rectify the issue. The Complainant also attempted again to gain clarification on her employment status following the completion of her maternity leave but was once again ignored by the Respondent. She therefore informed the Respondent that she would be turning up for work on the following Monday but he told her that there would be no work available and he would see how things were in April/ May 2021. As she heard nothing from him at this time, she decided to contact a solicitor to discuss her rights and the obligations of the Respondent in relation to the situation.

Her solicitor contacted the Respondent in writing and asked if the Complainant’s position was still available. It was only on receipt of this letter that the Respondent replied, indicating both his hostility at receiving a solicitor’s letter and informing the Complainant that the company she was employed by, namely Cusack Electrical Ltd, was not trading anymore. The Complainant understood from this letter that she had been dismissed.

The Respondent did not attend the hearing to give evidence.

CA-00045152-001:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Act provides:

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

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

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 6 (7) of the Act makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

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

Section 7 (2) of the Redundancy Payments Acts 1967 sets out five definitions of redundancy. In respect of this matter, I need to concern myself with the definition at subsection 7 (2) (a):

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if…. 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,

Analysis and Findings

I note firstly the Complainant’s assertion that she was informed by the Respondent that the company she was employed by was not trading by anymore. This was supported by an email from the Respondent to the WRC on 25 July 2022 stating that the company had ceased trading In March 2021. While I am satisfied therefore that the Complainant was dismissed on the grounds of redundancy in accordance with Section 6(4) of the Unfair Dismissals Act, 1977 and Section 7 (2) (a) of the Redundancy Payments Acts above, I must consider whether, notwithstanding the fact of the redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable, in accordance with Section 6 (7) of the Unfair Dismissals Act, 1977.

In making a decision, I noted firstly the the Complainant’s evidence that the Respondent appeared to have effectively replaced her in the role she filled over the course of 2020. I also reviewed the process surrounding the notification of redundancy to assess if there was a meaningful consultation process and note firstly that the Complainant was not informed that the Respondent had ceased trading until July 2021, despite having done so in March 2021. This was despite the Complainant having made several attempts to contact the Respondent around the end of her maternity leave in February 2021.

There is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. On the same issue of consultation, in the matter of O’Kelly v Exil Limited UD 1086/2017, the employer was found not to have acted reasonably and fairly as there were no meetings with the Complainant prior to redundancy and no discussion with the employee about suitability for alternative positions.

As well as the failure to adequately consult and engage with the Complainant, I also note that there was no avenue of appeal provided to her when she was effectively dismissed in July 2021. Such a process could have given her the opportunity to defend her future employment and highlight her willingness to work in alternative roles in other companies owned by the Respondent’s director. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner.

Having considered all matters put before me, I find that the Complainant was unfairly dismissed in light of the Respondent’s breach of 6 (7) of the Unfair Dismissals Acts 1977 -2015

CA-00045152-002:

THE LAW

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

It is the Complainant’s position that she did not receive any written statement of his terms and conditions of employment as required by the Terms of Employment (Information) Act 1994 outlined above. In the absence of any evidence to the contrary from the Respondent, I find that this complaint is well founded.

CA-00045152-001:

I have found that the Complainant was unfairly dismissed for the reasons set out above. 

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

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

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

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

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

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

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

(b) 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 employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt  measures, to mitigate the loss aforesaid, 

(d) 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, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I note in the first instance the Complainant’s preference for compensation as a remedy and find that this is the most appropriate form of redress in this case.

In considering what level of compensation to award, I note that there was no procedure for dismissal surrounding any selection for redundancy adhered to by the Respondent contrary to S.I. 146 and fair procedures generally and that alternative roles were not considered for the Complainant or proposed to her, as I have outlined in my analysis above. I also noted that no evidence was presented to demonstrate that the Complainant made any efforts to obtain alternative employment, apart from undergoing a training course, as mandated by the Act. 

In light of the foregoing, and having regard to the decision in ADJ 32667 where the Adjudication Officer stated that 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent” 

I determine that twenty-six weeks compensation should be awarded to the Complainant in respect of her unfair dismissal and make an award of €10,400 in respect of this complain. 

CA-00045152-002:

I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €1,600.