Complainant

Respondent

Parties

Adrian O'Hagan

Bellew Electrical Wholesale Limited

Representatives

Aaron Shearer B.L., instructed by   Esther McGahon, McGuinness & Co.

Dermot Murphy James H Murphy & Son

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040921-001

11/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040921-002

11/11/2020

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

CA-00040921-003

11/11/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation.  Cross examination of the witnesses took place.

The finalisation of this decision was delayed due to the impact of Covid 19.

The complainant submitted that he was in continuous employment with the respondent from around August 2011 until August 2020.  The complainant submitted that the is a case where the respondent blatantly abused the Covid 19 National Health Emergency to dismiss him.

The complainant submitted that he was employed as a salesperson and as a consequence of the public health emergency and national lock down caused by Covid 19 he was laid off from work. He was laid off on or about 1st April and did his last day’s work on the 3rd.  the complainant submitted that he accepts that his lay-off at this time was genuine and takes no issue with the layoff.

The complainant never worked for the respondent after April 2020. The complainant submitted that from this time up to his resignation, the made no adequate effort to engage with him. He submitted that during this time other staff were re-engaged by the respondent and a new employee was hired.

The complainant submitted that he made a significant number of inquiries to the respondent where he sought clarity about his employment. He submitted that he tried by phone (calls and text), by e-mail and on one occasion even by registered post.   The complainant submitted that his efforts were largely ignored.

The complainant submitted that during a telephone conversation on 12 June 2020 he spoke to a company director. The complainant submitted that he was specifically advised that his job might be at risk, specifically when he asked would he have a job to return to, he was told “possibly not”.

The complainant submitted that a meeting to discuss matters was organised between the parties for the following day but did not take place.   The complainant submitted that his concerns about his employment status were greatly heightened by this exchange and by the subsequent failure/refusal on the part of the respondent to meet with him.

The complainant submitted that this conversation is wholly consistent with the subsequent redundancy proposal made by the company, and it is submitted that it is a matter of some significance that the evidence about June meeting is not disputed or denied by the respondent.

The complainant submitted that there followed numerous attempts by him to contact his employer, however, it was not until Monday 17 August (over two months later) that the complainant finally managed to speak to the director again. On that occasion he was specifically advised to look for another job.  The complainant submitted that he asked the director if he was being made redundant and this was confirmed to him.

The complainant submitted that he was advised to submit his claim for redundancy by e-mail dated 24 August and the relevant forms were sent to him by the respondent at that time. The complainant submitted that the respondent contends that it was him and not it, who suggested redundancy.

The complainant submitted that while this contention is categorically denied, the respondent appears to be indicating that it was prepared to collude with the complainant in manufacturing a redundancy scenario which the company now contends did not arise.   The complainant submitted that what is clear is that redundancy application forms were sent by the company to the complainant on 24 August 2020.

The complainant submitted that having sent the August e-mail, the company subsequently sought to change its position and, in a letter, dated 2 September suggested that the complainant was still in its employ. The complainant submitted that the transparency of the attempt to avoid paying the statutory redundancy, holiday pay and notice pay is blatant.  The complainant noted that after 2 September 2020 the company did not contact the complainant again but it is asking the Commission to believe that the complainant continued to be employed with it until 7 October.

The complainant submitted that it is common knowledge that Irish society had largely re-opened by September 2020 and yet, notwithstanding that fact, the respondent regards the comment in the letter 2 September - “Your client has been advised that if the situation changes, we will contact him.” - as a level of engagement sufficient to maintain an employment relationship. It was submitted tht this cannot be the case given what had already unfolded.

The complainant submitted that the position is clear - he was made redundant by the respondent at a meeting on 17 August 2020.  Forms to formalise the redundancy were sent to him by the respondent on 24 August. The respondent then sought to backtrack from the dismissal. It did this notwithstanding that it had formed an opinion back in June 2020 that the complainant’s job was at risk, notwithstanding confirmation of redundancy on 17 August, and notwithstanding the provision of redundancy documentation on 24.

The complainant submitted that in the alternative, the complainant was constructively dismissed in circumstances where the respondent failed to engage with him, always refused to clarify the position vis-a-vis his job prospects and where the company allowed other staff to return to work whilst continuing to lay off the complainant. The afore-referenced letter of 7 October 2020 confirmed as a formality that the complainant’s employment had ceased. This was done largely to avoid any issues with jurisdiction in these proceedings.

The complainant submitted that the company has cited a failure by the complainant to raise a grievance. The complainant referred to correspondence between the parties from July 2020 about a return to work where the respondent stated, “We are continuously reviewing the situation and will be in contact with you if circumstances change”. The letter of 2 September 2020 stated, “Your client has been advised that if the situation changes, we will contact him”.   The complainant submitted that other than those terse assurances, the respondent provided no reply to any inquiries made by the complainant. These inquiries involved numerous phone calls, e-mails and even a letter sent by registered post (such was the inadequacy of the lines of communication between employer and employee).

The complainant submitted that it is abundantly clear that the respondent did not intend to engage meaningfully with him, failed to engage meaningfully with him and (without prejudice to the claim under the Redundancy Payments Acts) made his employment with the respondent company untenable.

The respondent submitted that it did not terminate the complainant’s contract of employment, rather it was he who terminated his employment on 7 October 2020 by way of his solicitors.  The respondent submitted that he did so in order to set up a company competing against it.

The respondent submitted that none of the documentary evidence supports a termination by the employer - the notes of the meeting of 17 August 2020 indicate that it was the complainant who suggested redundancy. The respondent submitted that it offered to accept his application for voluntary redundancy at a time when the complainant had no statutory entitlement to such a payment. The respondent submitted that on 2 September 2020, it made it clear in fact that the complainant was on temporary leave and remained in its employment.

The respondent submitted that the complainant retained his key to the premises and continued to use his company phone until December 2020, long after the alleged date of termination by the respondent.

The respondent submitted that the complainant remained in the employment of the respondent up to 7 October 2020, but on lay off due to the economic consequences of the Covid pandemic and the lockdowns that ensued due to the government enforced restrictions. At this time the economic outlook for the respondent was dire and it could not be sure when the complainant would return. The complainant remained on statutory financial support from the government as far as it was aware.

The respondent submitted that it appeared at the meeting on 17 August, that the complainant was pressing to leave the company and so it was made clear to him that if he wanted to apply for voluntary redundancy that was an option that was made available to him. The respondent submitted that the discussion as recounted in the complainant’s solicitor’s correspondence and emails is not accurate and merely appears to serve a claim being made against it.

The respondent submitted that the complainant used the Company phone which he used at no cost to himself until December 2020 (some 4 months it is alleged that he was made redundant) to contact customers and suppliers of the respondent in an effort to acquire them for his new enterprise.   The respondent submitted that these facts do not support the complainant’s assertion that his version of events was the more credible one.

The respondent submitted that it was entitled to one week’s notice of the complainant’s termination of the contract of employment, but this did not occur because the complainant, through his solicitors, summarily terminated the contract of employment on 7 of October.

The respondent submitted that the complainant suggested that he was dismissed by the respondent per section 9(1)(a) of the Redundancy Payments Act 1967 as amended to date and that the dismissal was by way of redundancy because one of the five possible means of redundancy as described in section 7(2) of the Act. He does not however specify which of those alternative reasons for dismissal that he is relying on to bring the alleged dismissal in to the field of dismissal by way or redundancy.

The respondent submitted that there is no evidence in fact to support a claim that the complainant was dismissed, or his contract of employment terminated by the employer at all. Without a dismissal there can be no redundancy and as a result no entitlement to a redundancy payment which, presumably, is the basis for the claim of the complainant though again the specific section is not cited – the complaint form merely states that the complainant was not paid a redundancy payment.

The respondent submitted that there was no redundancy payment as the complainant was on lay- off, on the requisite covid payment and still an employee of the company.  The respondent submitted that there had been no decision made by to make any members of staff redundant and though there were six other staff members on lay off at that same time as the complainant none of them were made redundant by the Employer.

The respondent submitted that it has to be taken into account that all of this occurred at what were unprecedented times for the entire world and the government-imposed restrictions were materially affecting every business sector and every person employed therein. The respondent submitted that there was no work for the role that the complainant carried out in the company. He was a trusted member of staff and had access to the company property and the use of a mobile phone.  The respondent further submitted that it was anticipated that the complainant’s role would resume but nobody could tell at that time when that would have been. The respondent submitted that the company ceasing to trade was a possibility at the time as it was for many people and as such it is difficult to see how much further engagement could reasonably be expected of it in the circumstances.

The respondent that what was told to the complainant was that the uncertain times led to the respondent not being able to determine when there would be work for him to do. It certainly was the respondent’s hope that his role could be taken up again soon but all during the engagement as described the documents there were threats and possibilities of even greater restrictions and the consequences that would go with those restrictions. The respondent submitted that thankfully it did not fail, and the complainant’s role would have returned but he did resigned and then set up in direct competition with the Respondent. He was therefore not capable of taking up that role when it once again became available. There was no failure to clarify; it was just that the respondent did not know at the relevant times in this complainant when he would return to his role. In the extraordinary circumstances that existed at that time it was a perfectly reasonable position for the respondent to take.

The respondent submitted that the fact that other members of staff returned from layoff before the complainant is not a factor that can be taken into account. The issue is that the layoff arose from the respondent having no work to do. The respondent submitted that once there was no work to do for the complainant the fact that there was other work to do for other staff members is not a factor that can be taken into account in the adjudication officer’s evaluation of the reasonableness or otherwise of the conduct of the employer.

The respondent submitted that none of the six other staff members who were on layoff were made redundant subsequently.

The respondent submitted that if the complainant believed that he had a genuine complaint against its conduct, he ought to have engaged with the grievance procedure as set out in the company handbook. There was no complaint about the lack of engagement or the employer being unclear about job prospects in fact there was no complaint about these at all – there was no grievance taken. The respondent submitted that quite possibly there was no complaint because the complainant had already set his mind on setting up in competition with the respondent and then only used his ‘version’ of the meeting of 17 of August. The respondent submitted that there was no request in the solicitor’s letter of 2 of September to return the complainant to work – all that is sought is a confirmation that he was made redundant and seeking payment of his statutory redundancy payment. The respondent submitted that this was only 2 weeks after the earlier meeting and there is no request for a discussion about return to work or any conciliation process; it was merely a request for money.

The respondent submitted that the complainant did not use the grievance procedure as he had no real intent to return for work and instead just used the pandemic to contrive a situation whereby, he could make a claim for redundancy or in the alternative a claim for constructive dismissal to extract money out of a company which was itself in a strained financial position due to the covid pandemic.

The respondent submitted that there was no dismissal as per the Unfair Dismissals Act.

The complainant submitted that he was unfairly dismissed in circumstances amounting to a redundancy situation.  He further submitted that he was entitled to a redundancy payment in those circumstances.  He also submitted that he was entitled to a payment in lieu of minimum notice.

CA-00040921-003 Unfair Dismissal

The complainant worked for the respondent for a period in excess of 12 months and is therefore entitled to seek the protection afforded by the Unfair Dismissals Act, 1977.  The complainant submitted that he had to leave his job due to the conduct of his employer.  He suggested in evidence that he was made redundant initially and that the employer never carried out that redundancy and therefore he was left with no alternative but to resign.

The respondent denied this suggestion.  The witness for the respondent (a director) stated that the complainant is the one who raised the issue of a possible redundancy and that in the circumstances this amounted to a voluntary redundancy.  The witness agreed that he did send out the forms to the complainant for completion but that no redundancy existed for two reasons.  The first reason is that the complainant never returned completed forms and secondly, the conditions for a redundancy to take place did not exist.  The witness stated that six other employees were on short term layoff due to the impact of Covid 19 and that none of the other staff had been made redundant.  The witness confirmed that other staff members did return earlier than the complainant and that it had to take on an extra staff member to perform specific tasks aimed at minimising the risk facing the respondent but also gave testimony that the complainants job still existed and still needed to be done upon the general return to work that took place at a later stage.  The witness confirmed that the complainant was not dismissed.

The respondent acknowledged that there are circumstances where a redundancy might take place and noted the five reasons outlined in Section 7(2) of the Redundancy Payments Act 1967 where those reasons are outlined.  That Section reads as follows:

(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 respondent noted that none of the five situations outlined above existed in relation to its business, rather it had laid off some staff members in accordance with the government provisions in existence to cope with the impact of the Covid 19 pandemic.  On the other hand, the complainant did not point to any facts from which any of the five situations (a) to (e) above may be inferred.   The complainant did not indicate that he was dismissed but confirmed that he resigned.  Accordingly, I am satisfied that the complainant has not established facts from which a dismissal by reason of redundancy can be inferred.

I also note that the complainant while resigning did not seek to be brought back into the workplace at that time.  On the basis of the foregoing, I find that the complainant resigned from his position and was not unfairly dismissed.

CA-00040921-002 Redundancy payment

Having regard to all the written and oral evidence submitted by the parties, I am satisfied that the complainant has not established that he was made redundant and was therefore not entitled to a redundancy payment.  As I have found above that the complainant resigned, I cannot allow the complainant’s appeal.

CA-00040921-001 Minimum notice payment

Having regard to all the written and oral evidence submitted by the parties, I am satisfied that the complainant has not established that he was unfairly dismissed and resigned from his positon.  As I have found that the complainant resigned, I find that he was not entitled to a minimum notice payment and that the Act was not contravened.

CA-00040921-003 Unfair Dismissal

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

CA-00040921-002 Redundancy payment

Having regard to all the written and oral evidence in relation to this complaint, my decision is to disallow the complainant’s appeal.

CA-00040921-001 Minimum notice payment

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the Act was not contravened.

Unfair dismissal – not established – Redundancy Payment – no entitlement – Minimum Notice – Act not contravened