Complainant

Respondent

Parties

Conor  Mcguirk

Pulse Security Management Limited Pulse Security

Representatives

Cian Duffy Denis I Finn Solicitors

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-00040416-001

15/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00040705-001

30/10/2020

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

CA-00041710-001

23/12/2020

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 witnesses for both parties gave their evidence under affirmation and both parties were permitted to cross examine witnesses for the other party.

CA-00040416-001

The complainant was employed as an operations manager with the respondent.  The complainant submitted that he was unfairly selected for redundancy in that he was invited to give suggestions as to how the redundancy was dealt with and his suggestions were ignored in favour of a Last In/First Out policy.  He submitted that he suggested putting the two managers under consideration for redundancy on part-time work.

The complainant submitted that he was told there were no other vacancies when there were.  The complainant submitted that he ultimately found out that he had more service than his colleague and that according to the LI/FO policy being followed, the other employee should have been made redundant.

The complainant submitted that he had been unable to secure employment in the sector and he submitted that he has had a loss of earnings amounting to €150 per week for the last 69 weeks totalling €10,350 as he is in receipt of the pandemic unemployment payment.

CA-00040705-001

The complainant submitted that he was not properly consulted in relation to the redundancy process.

CA-00041710-001

The complainant submitted that he was owed outstanding wages – he submitted that he was owed for 182 overtime hours he worked in 2018, 128.5 overtime hours he worked from 28 January until 29 April 2019 and for a further 498 hours that he worked from 6 May to 25 November 2019.

The complainant also stated that he was owed for 3 weeks holiday hours for his employment.

CA-00040416-001

The respondent submitted that the complainant’s termination was fair and that it made him redundant on the basis of a last in/first out policy.  The respondent agreed that it transpired some months later, when it was making the other operations manager redundant, that rather than joining the company through a Transfer of Undertaking when it took over a previously existing firm, the other firm had paid the second operations manager a redundancy and that when it took him on he was in fact a new entrant.

The respondent submitted that making the complainant redundant first was an honest mistake in that the other manager never informed them that he had been made redundant from his previous post.  At the time of the complainant’s redundancy, it appeared to them that he had less service.  The respondent submitted that neither the complainant nor the second operations manager informed the company of the fact of his earlier redundancy.  Accordingly, it had no way of knowing of those facts.

As regards mitigation of loss, the respondent submitted that it found it hard to believe that the complainant could not find work in the security industry.  Although its business model here to ffore have revolved around live gig venues, the security industry was currently experiencing difficulties in recruiting people.  The respondent submitted that it was currently going through a further restructure to reorient its business towards areas of growth in the security sector and away from live gig security as this aspect was under continuing pressure due to the ongoing pandemic restrictions.

In relation to possible alternative work, it had some availability for an events steward but that this was not offered to the complainant as he had indicated that he did not want to undertake on-site work because of vulnerable relatives.

CA-00040705-001

The respondent submitted that it did provide the complainant the opportunity to be accompanied at the meetings regarding redundancy.  It accepted that it had omitted to indicate to the complainant that he could bring a representative to the initial meeting to discuss redundancy but that it offered to postpone the meeting to allow the complainant to bring a representative, however the complainant declined the offer.  At the appeal meeting, the complainant was not accompanied by a representative and was once again offered the opportunity to postpone the meeting to enable a representative to attend.  However, once again the complainant declined the offer and the meeting proceeded.

CA-00041710-001

The respondent submitted that the complainant did not submit time sheets covering the hours that he was now claiming as unpaid wages.  The respondent indicated that if he had submitted such time sheets it would have discussed the matter with him.  The complainant was not paid an hourly rate and In previous years it had paid a bonus to the complainant in recognition of the additional effort he had put in.  It was noted that one of the bonuses was paid in February 2020 and would have reflected any additional commitment put in by the complainant up to that date. 

The respondent submitted that it had not received any timesheets for the additional hours and accordingly was not in a position to consider the matter further.

CA-00040416-001

Section 7 of the Redundancy Payments Act, 1967 states that

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 submitted that owing to the change in the financial fortunes of the security sector, the requirement for employees had diminished, this account was supported by testimony and was not challenged.  Accordingly, I find that the complainant was dismissed by reason of redundancy.  However, Section 6(1) of the Unfair Dismissals Act, 1977 states that

Subject to the provisions of this section, 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 Unfair Dismissals Act, 1977 goes on to state that

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 qualifications 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 which 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.

Although, Section 6(1) indicates that the dismissal of an employee shall be deemed to be an unfair dismissal, Section 6(4) indicates that redundancy of the employee is one of the situations where a dismissal is not deemed to be unfair.

Section 6(7) of the Act states that

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(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.

This Section allows an adjudication officer to consider the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.

In the present case, the respondent gave testimony regarding the detail of and provided supporting documentation for its position that the dismissal by way of redundancy was fair.  Evidence was given which outlined the process it pursued.  The complainant submitted that the respondent should have dealt with the redundancies in a different manner. The respondent explained that it followed an established procedure, that of Last in/First out.  Ultimately the respondent had to make a decision on how if effected the redundancy and while it transpired that at the time of making the decision the respondent was not in possession of all the facts, I cannot find anything unreasonable in the manner in which the respondent proceeded with the redundancies.

Arising from the foregoing, I find that the complainant was not unfairly dismissed.

CA-00040705-001

The complainant indicated in his initial submissions that that his representative was not properly consulted in relation to a collective redundancy.  During the hearing, he noted that he had not been properly consulted in relation to the redundancy however aspect was not the content of the original claim submitted within the timeframe envisaged by the Acts.  Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 states that

An employee, or a trade union, staff association or excepted body on behalf of an employee, may present a complaint to a rights commissioner that an employer has contravened section 9 or 10 of the Act of 1977 and, if he, she or it does so, the commissioner shall give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

Section 9 of the Protection of Employment Act 1977 states that:

(1) Where an employer proposes to create collective redundancies, he shall, with a view to reaching an agreement, initiate consultations with employees’ representatives 

(2) Consultations under this section shall include the following matters—

(a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or mitigating their consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant,

(b) the basis on which it will be decided which particular employees will be made redundant.

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given.

Section 10 states that

(1) For the purpose of consultations under section 9, the employer concerned shall supply the employees' representatives with all relevant information relating to the proposed redundancies.

(2) Without prejudice to the generality of subsection (1), information supplied under this section shall include the following, of which details shall be given in writing—

(a) the reasons for the proposed redundancies,

(b) the number, and descriptions or categories, of employees whom it is proposed to make redundant,

(c) the number of employees, and description or categories, normally employed,]

 (cc)(i) the number (if any) of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies engaged to work for the employer,

(ii) those parts of the employer’ s business in which those agency workers are, for the time being, working, and

(iii) the type of work that those agency workers are engaged to do,

and 

(d) the period during which it is proposed to affect the proposed redundancies.

(e) the criteria proposed for the selection of the workers to be made redundant, and 

(f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice.

(3) An employer shall as soon as possible supply the Minister with copies of all information supplied in writing under subsection (2).

The complaint pertains to a collective redundancy situation.  As the instant case does not relate to a collective redundancy situation, I find that this complaint is not well founded.

CA-00041710-001

The complainant submitted that he was not paid for three occasions where he worked overtime hours.  Notwithstanding that the first two periods are outside of the timeframe envisaged under the legislation for taking such complaints, as the complainant did not submit timesheets for those hours and was not able to provide any independent verification of having worked those hours, I am not satisfied that the complainant has established facts upon which he can rely to base this complaint.

Section 1 of the Payment of Wages Act, 1991 defines wages as

wages, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

 I am not satisfied that the hours claimed by the complainant are properly payable under the Acts. Accordingly, I find that this complaint is not well founded.

I also note that no complainant regarding unpaid holiday pay was received by the WRC within the timeframe envisaged by the Acts or under European legislation.

CA-00040416-001

Arising from my findings above, my decision is that the complaint was not unfairly dismissed.

CA-00040705-001

Arising from my findings above, my decision is that this complaint was not well founded.

CA-00041710-001

Arising from my findings above, my decision is that this complaint was not well founded.

Unfair dismissal, collective redundancy, payment of wages, not well founded.