FULL RECOMMENDATION
PARTIES : JENPEN LIMITED T/A SINNOTTS ON THE STRAND DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00029391, CA-00039190-001. Background The Complainant commenced employment with this Respondent on foot of a transfer of undertakings which came into effect on 3rdJune 2020 having been in the employment of the previous employer since 8th May 2019. The Complainant was employed as an assistant bar manager. He was made redundant with effect from 21stJuly 2020. Dismissal is not in dispute; therefore, it is for the Respondent to show that the dismissal was fair. The parties accepted that the business was obliged to close under government restrictions for the following periods. March 2020 to 29thJune 2020, 21stOctober to 3rdDecember 2020 and 24thDecember 2020 to July 2021. Following the transfer, the Respondent had carried out some renovations on the premises which delayed the re-opening until the 17thJuly 2020. Summary of Respondent’s submission and evidence. Ms O’ Donovan BL on behalf of the Respondent indicated to the Court that although they had raised a preliminary issue in their submission, they now accepted that the Complainant was entitled to rely on the letter of the 14thJuly 2020 advising that he was being made redundant from 21stJuly 2020 and that they would not be pursuing the original preliminary issue that they had raised. Ms O’ Donovan BL submitted that the Respondent had taken over a failing business. Eight members of staff had transferred across. Immediately prior to the transfer there were no employment contracts in being and the Respondent had insisted that all staff be provided with contracts prior to the transfer. This had happened. At the time of the transfer the business had been closed as part of Covid lock down since March 2020. The Respondent reviewed the business and decided to expand the food side, although no chef or food manager had transferred across. It was decided that one of the part-owners Mr Sinnott would manage the bar with his son and that a new person would be brought into run the food side of the business. The Respondent closed the larger of the bars and turned it into a restaurant and only kept a small bar. The Respondent felt that they no longer had need of an assistant bar manager and therefore there was no work for the Complainant. He was offered a role as barman on minimum wage on an ‘as needs’ basis, but he declined same. The Complainant’s contract provided as follows“where employees are made redundant, the prime consideration will be to protect the employment of as many people as possible and maintain a fully efficient operation. Therefore, the selection criteria will be aimed at retaining key employees required to maintain high quality and efficient future operation of business. All else being equal a policy of last -in, first-out will apply.” Mr Sinnott who is a part-owner of the business in his evidence to the Court stated that he is currently the bar manager and that he runs the bar part of the business with his son. There is no role for an assistant bar manager. In respect of the relevant period July 2020 his son would have been working alongside him in the bar five days a week. However, that went down to three days a week and only went back up to fulltime approximately two weeks ago as they were not getting the volume of business to sustain a five-day week. The business now focuses on food. It was his evidence that currently the breakdown between food and bar is 75% food trade and 25% bar. They stop serving food at 9.30 and there is no bar trade after that. As part of the renovations, they doubled the size of the kitchen and changed the main bar into a restaurant. At the time of the transfer the business was in financial difficulties the accounts for the previous three years showed the business was in decline. Mr Sinnott stated that he had a conversation in June with the Complainant where he informed him that he was bringing his son in and that there was no position for an assistant bar manager. The only position he could offer him was bar work at minimum wage and no guaranteed hours. Mr Sinnott stated that the first he became aware that the Complainant had an issue was when they received the letter of 5thAugust 2020 where the Complainant stated that he was taking a case to the WRC and that he had received advise saying he shouldn’t have been made redundant. Under cross examination from the Complainant Mr Sinnott was asked how he came to the conclusion that the Complainant was the person who should be made redundant. He stated that he needed someone to run the restaurant side of things, so he recruited Mr Sweeney who he had worked with from before. He stated that as no chef or kitchen staff had transferred across, he assumed that previously the pub had not served food. He confirmed that he had not asked to see the Complainant’s CV or sought any information from him in respect of the role he had held for the previous ten months prior to the transfer or in respect of previous positions that he held. He confirmed that he was not aware that the Complainant had twenty odd years’ experience working in gastro pubs. It was put to Mr Sinnott that the pub had a seasonal food service and as assistant manager that fell within the Complainant’s role. Mr Sinnott stated that when he had called in February 2020 there was no food service. Mr Sinnott stated that Mr Sweeney commenced work on 1stJuly 2020, and it was his view that he needed someone with Mr Sweeney’s skill set to run the restaurant side of the business. He accepted that he had not given any consideration to whether or not the Complainant had the relevant skillset to fulfil that role prior to appointing Mr Sweeney. Summary of Complainant’s submission and evidence Mr Kelly submitted that prior to the transfer, the business had served food, but it was a seasonal trade which ceased around Christmas until the springtime. As assistant manager he would have had experience in running a food service in a pub environment. In his previous jobs he had worked in gastro pubs so had extensive experience in that area. It was his evidence that on the 30thJune 2020 Mr Sinnott rang him and told him he could not afford to keep him on. He met with Michael Sweeney on the 7thJuly 2020 who advised him that they could only offer him bar work at minimum wage with no guaranteed hours. Later that same day he telephoned Mr Sweeney to say he could not take that role as he needed regular income as he had a family to support. At the time he was in receipt of the pandemic payment. He was not aware at that time that Mr Sweeney had been brought in to run the food side of the business. It was his understanding that the business was being run by Mr Sinnott and his son. The Complainant submitted that he had applied for other jobs and listed out for the Court five or six jobs he applied for. In November 2020 he was successful in getting a job but did not commence same until the 1st ofJanuary 2021. The Complainant confirmed that the new job had a higher rate of pay than what he received from the Respondent. He also confirmed that prior to taking up that job he had carired out two weeks work in a pub and the rate of pay for those two weeks was similar to what he had received from the Respondent prior to Covid. The Law
6.— (1) 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. (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 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.
Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion The Court notes that the Complainants contract carried a redundancy clause which indicates that in a redundancy situation the prime consideration will be to protect employment. Mr Sinnott in his evidence stated that he gave no consideration prior to hiring Mr Sweeney as to whether or not the Complainant could be redeployed into that role. He also confirmed that he did not consider the Complainant’s CV or make any enquiry of the Complainant in respect of his skillset. On that basis the Court finds that fair procedure was not followed and no meaningful consideration was given to protecting the Complainants employment, when coming to the decision to make the Complainant redundant. The Court finds that the decision to dismiss was unfair. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €5,000 taking into account the efforts the Complainant made to mitigate his loss, his rate of pay in his new job and the earnings he had in the intervening period. The Court so determines Determination The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is varied as set out above. The Court so determines.
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