Complainant

Respondent

Parties

Dariusz  Sobocinski

Harrington Bookmakers Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00035459-002

26/03/2020

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

CA-00039117-001

10/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039117-002

10/08/2020

The Complainant was employed by the Respondent from 1/9/2012 to 23/3/2020. The Complainant’s gross weekly pay was €467.50. The Complainant stated on his Complaint Form that he worked forty two and half hours weekly although at the adjudication hearing he stated that he worked forty seven hours/week. The Complainant stated on his Complaint Form that the Respondent company was in liquidation. The WRC received the Complainant’s unfair dismissal complaint on the 26th March 2020 and received a further Complaint Form on the 10th August 2020.

CA-00035459-002

The Complainant stated that he was employed as a maintenance worker looking after the Respondent’s offices. He stated that during the time he was employed he also worked as a farm assistant. During his time of employment, the Complainant stated that there were some twenty to thirty people employed by the Respondent including office staff, security staff and himself as maintenance. The Complainant stated that on Friday the 20th March 2020, whilst he was working and doing some repairs in the house of Ms Gillian O’Connell -  daughter of the two company directors Ms Tríona Harrington and Mr Phelim O’Connell - he was told by Ms O’Connell that his employment was finished on the 23rd March 2020 and that he had no work to go to on that day or after. According to the Complainant, Ms O’Connell also told him to sign on the dole. The Complainant stated that he did not get any prior notice of this discussion.

The Complainant also stated that his manager - Mr Phelim O’Connell – did not give him any prior notice of his dismissal and had no discussion with him about dismissal. The Complainant provided copy of an undated letter which he stated he received on the 23rd March 2020 from Mr Phelim O’Connell which stated as follows:

“….This letter is to confirm that Darius Sobocinski employment ceased with Harrington Bookmakers on week ending 22nd March”

The Complainant stated that to the best of his knowledge the Respondent’s office continued to operate in Carlow and he indicated that the Respondent had not ceased trading. However, he also stated that Head Office staff and maintenance staff were made redundant. The Complainant stated there was always a need for himself as a maintenance worker since there was always work to be done.

The Complainant stated that the Respondent signed Form RP50 which he sent to the  Department of Employment Affairs and Social Protection (DEASP) to claim redundancy pay. Post adjudication hearing the Complainant furnished copy of a partially completed and unsigned RP50 Form together with copy letter from the DEASP dated 30/3/20 which advised that his redundancy entitlement would be paid.

CA-00039117-001

The Complainant stated that he received no notice of the termination of his employment and that up until Friday 20 March 2020 – which was his last day of work for the Respondent - he had no indication he would not be in his employment from the following Monday. As a result the Complainant stated that he had no opportunity to look for other work prior to the termination of his employment. 

CA-00039117-002

The Complainant stated that he did not take any annual leave in 2020 and that based on his hours/week of 47 he was claiming 5 days annual leave.

The Respondent did not attend or provide any written submission.

CA-00035459-002

The relevant legislative provisions in relation to unfair dismissal are set out in the Unfair Dismissals Act [1977-2017]. In that regard, Section 1 of the Act defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a)      the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (4) of the Act sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal”  - ie - where the dismissal results wholly or mainly from issues related to the capability, competence, qualifications, conduct of the employee or his/her redundancy.

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“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 [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides thatin determining whether a dismissal is unfair, regard may be had:

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

The Complainant’s evidence in this case is that he was advised on the 20th March 2020 that there was no more work for him and this was confirmed by letter from Mr Phelim O’Connell, Company Director. The Complainant  furnished copy of a partially completed RP50 Form and letter of 30th March 2020 from the DEASP confirming his redundancy payment.

With regard to redundancy as a defence to an unfair dismissal, Section 7(2) of the Redundancy Payments Act [1967-2021] provides that an employee “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 potential range of scenarios involving change in the business or change in the workforce. The Complainant’s evidence was that there were a number of redundancies in the Respondent – however, he also stated that to the best of his knowledge the Respondent continued to trade. The matter of selection of persons for redundancy has come under repeated legal scrutiny and in this regard, there is an onus on an employer to act reasonably, fairly and in a transparent manner in deciding which employee is selected for redundancy. As set out in the case of St Ledger v Frontline Distributors Ireland Limited, (1995) ELR 160, “impersonality runs through the five definitions [of redundancy] in the Acts.  Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job.”

In general, an employer when affecting redundancies should engage with employees that are likely to be affected and provide information at the earliest opportunity possible so as to afford the employees reasonable time to consider the proposed redundancies.  The employer should explore all alternatives to redundancy including redeployment to any alternative position within the organisation.  In addition, the employer should consider any proposals put forward by an employee concerned and finally the employee should have the right of appeal against a decision to terminate his or her employment. These matters were considered by the Employment Appeals Tribunal (EAT) in the case of Cronin v RPS Group, (UD2348 / 2009).  In that case the employer deployed a matrix based on six criteria.  In their determination the EAT accepted that a genuine redundancy situation existed but found for the claimant on the following grounds:

-          Failure to advise the claimant of the criteria to be applied for redundancy

-          Failure to give the employee the opportunity to make representations on her own behalf

-          Failure to provide an appeal mechanism to the claimant

-          Failure to consider redeployment as an alternative to redundancy

-          Failure to consider the claimants service record.

Applying the foregoing to the present case and based on the Complainant’s  uncontested evidence, I am satisfied that he was unfairly dismissed. The Complainant was given no notice of his dismissal and/or redundancy, he had no opportunity to make any representations on his own behalf, there was no prior discussion with the Complainant in relation to the prospect of dismissal or redundancy and no evidence was adduced before me, to suggest that the Respondent engaged in a fair selection process for redundancy.  Whilst the Respondent did not attend the adjudication hearing, I am satisfied that the preponderance of evidence before me is consistent with the unfair dismissal of the Complainant.

CA-00039117-001

Section 4 of the Minimum Notice and Terms of Employment Act [1973-2017] sets out the statutory notice periods an employer is required to give in order to terminate the contract of employment of an employee who has been in his/her continuous service for a period of 13 weeks or more. At Section 4(c) the Act prescribes four weeks notice for an employee who “has been in the continuous service of his employer for five years or more, but less than ten years….”.

Based on his uncontested evidence, I am satisfied the Complainant was entitled to four weeks pay in lieu of notice in accordance with his statutory entitlement.

CA-00039117-002

Section 19 of the Organisation of Working Time Act [1997-2020] provides as follows:

19.— (1) ….. An employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours …,

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)…..

At the adjudication hearing the Complainant stated that he worked forty seven hours/week, that he had not taken any annual leave in 2020 and that he was seeking five days. I note that his contract of employment stated that the leave year ran from the 1st January to the 31st December. Having regard to the Complainant’s uncontested evidence I am satisfied he is due five days annual leave based on 8% of eleven weeks and three days worked up until the 20th March 2020.

CA-00035459-002

For the reasons outlined, this complaint is well founded. There is an obligation on the Complainant to mitigate his losses. Accordingly, I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to five weeks gross pay – ie the sum of €2,337.50 – which I consider to be just and equitable in all the circumstances. This is subject to such statutory deductions as may apply.

CA-00039117-001

For the reasons outlined, this complaint is well founded. Accordingly, I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to four weeks gross pay – ie the sum of €1870 subject to such statutory deductions as may apply.

CA-00039117-002

For the reasons outlined, this complaint is well founded. Accordingly, I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to one weeks gross pay – ie the sum of €467.50 subject to such statutory deductions as may apply.

Unfair Dismissal, Redundancy, Minimum Notice, Annual Leave