FULL RECOMMENDATION
PARTIES : CUAN TAMHNAIGH TEORANTA (TOWNEY BAY FINISHING CO. LIMITED)
SUBJECT:1.Appeal Of Adjudication Officer Decision No. ADJ-00023294 CA-00029793-002 This is an appeal on behalf of Cuan Tamhnaigh Teoranta (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00023294/CA-00029794-002, dated 27 May 2020) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer found that Mr Declan McShane (‘the Complainant’) had been unfairly dismissed from his employment with the Respondent and made an award of compensation of €12,000.00 in his favour. The Respondent’s Notice of Appeal was received by the Court on 6 July 2020. The Court heard the appeal in a virtual courtroom on 4 October 2021 and on 20 January 2022. Two witnesses gave evidence for the Respondent: Mr Tony Leahy, Financial Controller and Mr Jason Quornby, Production Manager. The Court also heard evidence from the Complainant. The Complainant commenced employment with the Respondent as a carpet weaver on 29 April 2016. His last day of work with the Respondent was 7 July 2019. However, he was paid in lieu of two weeks’ notice. Hence, his date of dismissal for the purposes of the Act is 21 July 2019. The Respondent’s Defence. The Respondent’s case is that the Complainant was lawfully dismissed for reasons of redundancy, in July 2019, because of the Respondent’s decision to discontinue in its entirety the weekend evening shift on which the Complainant worked due to a reduction in demand for the type of product for which that shift had been established some twelve years previously. Two colleagues who also worked on the same shift were made redundant at the same time. The Respondent manufactures carpets for the aviation industry. The witnesses for the Respondent gave detailed and cogent evidence in relation to the changing market worldwide for the Respondent’s product and, in particular, the reduction in demand for the product type for which the weekend evening shift had been set up i.e. long, uninterrupted production runs of standard aviation carpet with non-complex designs. Due to the loss of three significant customers, the Respondent’s total output dropped from 262,000 metres in 2018 to 240,000 metres in 2020. The witnesses also told the Court that the Respondent’s customers are increasingly ordering shorter runs of bespoke carpet that require greater design input and technical support. Such support is available only to the production shifts that the Respondent operates on weekdays. The Complainant’s shift, according to the Respondent, was not supported by ancillary staff. Therefore, following a review of the business in early 2019 and the formulation of a three-year business plan, a decision was taken to discontinue the weekend evening shift (‘Shift A’) as it was no longer profitable or efficient in the light of the change in customers’ requirements. The Respondent, therefore, engaged with the Complainant and his two colleagues on Shift A. The Complainant was informed, at a meeting on 29 June 2019, of the review that had been carried out of the business and that Shift A had been found to be unprofitable and the Respondent was, therefore, considering discontinuing it. He was also advised that the Respondent was actively considering options to redeploy him elsewhere in the business. He was invited to put forward any proposals he had himself in this regard. It appears that the Complainant did not avail himself of the opportunity to suggest how he might be alternatively employed within the business. A second meeting took place on 7 July 2019 at which the Complainant was informed that his employment was being terminated due to redundancy with immediate effect subject to payment of two weeks’ pay in lieu of notice. The Respondent submits that a genuine redundancy situation had arisen in mid-2019 due to the reduction in demand for its product in the circumstances outlined above. It further submits that the decision to dismiss the Complainant arose wholly or mainly from the need to reduce headcount. Finally, it submits that it considered all alternatives to redundancy and notes that the Complainant did not avail himself of the opportunity to suggest how his dismissal for redundancy could have been avoided. The Complainant’s Case The Complainant gave detailed evidence in relation to the operation of Shift A on Friday, Saturday and Sunday nights. He also stated that he occasionally undertook overtime work during the week. He then went on to tell the Court that he had previously successfully referred a complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission (‘WRC’). This resulted in an award of compensation, payment of which he ultimately received along with his statutory redundancy payment The Complainant had also referred a complaint to the WRC Inspection Service. An inspection of the Respondent’s employment-related records followed from that. The Complainant’s two colleagues on Shift A had given evidence in the course of the hearing before the Adjudication Officer into the complaints under the 1997 Act. The Complainant also informed the Court that he had been a Shop Steward at the plant for two years after which period he was elected as Employee Safety Representative. The Complainant says that he was not advised by the Respondent that he had a right to appeal the decision to make him redundant. He received and retained a statutory redundancy payment of €3,393.32. In response to questions from the Court, he said he accepted that a genuine redundancy situation had come about in the Respondent company. However, he said that he believed he had not been fairly selected for redundancy and that the decision to make his position (and those of his colleagues on the A Shift) redundant was taken in retaliation for his previous successful claim to the WRC and for his referral of a complaint to the Inspection Service. The Complainant said that there were a number of employees, some of whom are employed as weavers, who had shorter service with the Respondent than he had and who were not considered for redundancy. The Complainant gave the following evidence in relation to his efforts to mitigate his loss. He says that he initially approached two businesses in the Killybegs area seeking employment. However, he formed the view that he was unlikely to be successful in obtaining work locally as believed that he was branded as a troublemaker. He, therefore, made a decision to train as an HGV driver. He completed the necessary training and obtained his licence by mid-December 2019. He got his first driving job in early January 2020 and commenced work on 8 January 2020. This lasted about ten days and came to an end because the vehicle he was driving broke down and the employer was not in a position to have it repaired. The Complainant got a second job shortly after that driving to England and Dublin. The advent of the Covid-19 pandemic resulted in this job being discontinued. Thereafter, in or around March 2020, the Complainant commenced work with a haulage company based in Northern Ireland delivering to Great Britain. He left this job on 30 June 2021 and commenced working for another transport company that operates exclusively in Ireland on 4 July 2021. His earnings with this company are on a par with what he had been earning with the Respondent and he, therefore, currently has no ongoing loss. Discussion and Decision The Complainant does not dispute that a genuine redundancy situation had come about in the Respondent in mid-2019. His case is that he was unfairly selected for redundancy at that time in retaliation for having previously referred complaints to the WRC in relation to his working hours and rest breaks. He says that Respondent’s decision was afait accomplifrom the start, that no genuine engagement in relation to alternatives to redundancy took place at the meetings to which he was invited. Having carefully considered the evidence of the Respondent’s witnesses, the Court finds that the Respondent advanced a strong business case in support of its decision to discontinue Shift A. However, the Court finds that the Respondent’s engagement with the Complainant over the course of two very brief meetings (at the second of which he was dismissed) was perfunctory and pro-forma. There was no meaningful effort made, in the Court’s view, to consider options for alternative employment for the Complainant. There was no evidence before the Court that he was afforded an opportunity to appeal the Respondent’s decision to dismiss him for redundancy. On the basis of the foregoing, the Court dismisses the appeal and upholds the Adjudication Officer’s finding that the Complainant was unfairly dismissed in all the circumstances. Redress The Court notes that the Complainant’s evidence was that he approached only two employers in his local area to seek employment when his job with the Respondent was made redundant. He did this in the days immediately following the cessation of his employment but prior to his date of dismissal for the purposes of the Act. Thereafter, he decided to retrain as an HGV driver. This is an involved process and one to which the Complainant appears to have devoted his full time and attention up until the end of December 2019 as there is no evidence of his having made any further attempts to source work until he had completed his driver training. It follows, therefore, that either the Complainant deemed himself unavailable for work during this period because of the training he was undertaking (which he denies) or he made no effort to mitigate his loss for this period. The Court has noted the statutory redundancy payment received and retained by the Complainant, his evidence in relation to loss and mitigation and his evidence in relation to his earnings in the successive jobs he obtained from January 2020 to date. Having done so, the Court determines that the appropriate redress is compensation in the amount of four weeks’ pay in accordance with section 7(1)(c)(ii) of the Act. The Complainant’s rate of pay with the Respondent was €484.76. The Court, therefore, awards him compensation of €1,939.04.The decision of the Adjudication Officer is varied accordingly. The Court so determines.
Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
