Complainant

Respondent

Parties

Aileen  Davis

McLoughlin & Sons Hardware Limited C/O McLoughlin’s Trading Company

Complainant

Respondent

Representatives

Mr. F. Drumm BL instructed by Anthony Collier, Solicitor of Collier Law Solicitors

Mr. M. Jolley BL instructed by Kieran O'Brien,  Solicitor of Bowler Geraghty & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040409-002

14/10/2020

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

CA-00040409-003

14/10/2020

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

CA-00040409-004

14/10/2020

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

CA-00040409-005

14/10/2020

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

CA-00040409-006

14/10/2020

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

CA-00040409-007

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040409-008

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040409-009

14/10/2020

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

CA-00040409-010

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040409-011

14/10/2020

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

CA-00040409-012

14/10/2020

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

CA-00040409-013

14/10/2020

Act

Complaint/Dispute Reference No.

Withdrawn

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

CA-00040409-002

Withdrawn

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

CA-00040409-003

Withdrawn

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

CA-00040409-004

Withdrawn

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

CA-00040409-005

Withdrawn

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

CA-00040409-006

Withdrawn

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

CA-00040409-007

Withdrawn

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040409-009

Withdrawn

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

CA-00040409-012

Withdrawn

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

CA-00040409-013

Withdrawn

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040409-008

Proceeding

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

CA-00040409-010

Proceeding

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040409-011

Proceeding

The Employer was a Building Materials/Hardware/Plumbing Supply Company. The Complainant commenced employment as a Cleaner on the 15th September 2015 and ended on the 28th August 2020.  The Rate of Pay was a nett € 238 for a 22.5-hour week.

The Complainant alleged that she had been discriminated against on Age grounds as she stated that she had been replaced by a “Younger Worker”.

She alleged Discrimination in Training, Victimisation, Conditions of Employment and Discriminatory Dismissal. She also claimed that the Respondent Employer did not make available to her, her Contract of employment.

The Complainant furnished a detailed Written Statement and gave extensive Oral Testimony on which she was vigorously cross examined by Mr. Jolley BL for the Respondent

1:1        CA-00040409-008: Terms of Employment (Information) Act, 1994

The Complainant argued that she had never actually received a Physical copy of the Contract of Employment. She had signed it at the commencement of her employment, but the Employer had retained the only copy. She was therefore unable to refer to the Contract in 2020 to properly ascertain her Dismissal/Grievance procedures. This was in clear breach of Section 3 of the T of E, 1994 Act and Section 14 of the UD Act, 1977

1:2        CA- 00040409-010: Unfair Dismissal Act,1977

The Complainant had been, in keeping with most of her colleagues, on Covid PUP layoff since the 27th March 2020. On and around the 8th June 2020 she was effectively dismissed in a phone Conversation/e mail exchange with the Respondent Managing Director, Mr KMcL. In the phone call he had informed her that the cleaning work she had been doing was now radically changing and that she was no longer “capable” of the work. He pressurised her into agreeing a Voluntary redundancy package. No procedures were followed, and no appeal was offered to her. She was not afforded an opportunity to even attempt the new work schedules or even undertake any training for the new duties. The new replacement worker was much younger than her. The Complainant was effectively dismissed because of an employer belief that she was now “Incapable” of the Work. She was “too old”. Her Representative characterised this employer approach as flagrantly in breach of the UD Act,1977 both on procedural grounds and against all the provisos of the Act.

In her Oral testimony she maintained that Mr.K. McLoughlin had effectively brow beaten her into accepting Redundancy. She had not had the benefit of any proper advice at the time and was not represented in her dealing with Mr. KMcL. In his approach he had destroyed her self-confidence. She had felt “very down” and her agreement to Redundancy was not really a true reflection of her wishes at that time.

She loved the job and was anxious in June to get back to work as the Premises was opening up again. She had initially thought that the phone call would be about her return to work and not her dismissal. Mr. KMcL had just “pulled the rug from under her” and she was vulnerable at the time. It was only later when she had an opportunity to talk to friends and fellow workers that she had realised that she had a good case at the WRC.

1:3         CA-00040409-011: Employment Equality Act,1998

The Complainant was deemed “Incapable” of the cleaning work at the Employers premises. She was clearly told in the Phone call from Mr. KMcL on or about the 8th June 2020 that she was “Incapable” of the work as she was too old. This was blatant Age discrimination and amounted to a grievous breach of the EE Act, 1998.

The Respondent furnished a detailed Written Statement and gave extensive Oral Testimony from the Managing Director, Mr. KMcL. He was vigorously cross examined by the Complainant Legal Representative Mr. Drumm BL.

2:1        CA-00040409-008: Terms of Employment (Information) Act, 1994

The Respondent furnished a signed copy of the Employment Contract to the Adjudication. The complaint had been given a copy in 2015. While they were not a major employer they had good HR routines as regards paperwork and all employees get a copy of their Contract.  If she had mislaid it that could not result in the Employer being in breach of the Act.

2:2        CA- 00040409-010: Unfair Dismissal Act,1977

The Managing Director Mr. KMcL gave extensive Oral Testimony in support of the Written Submission. The Employer had no issues what so ever with the Complainant in the period from 2015 to 2020. She worked well, and her duties had comprised the cleaning of the Administration offices, the Canteen and the Toilets. Covid had hit the Company business hard as most Construction work was closed down until June 2020. They were deemed to have been an “essential service” and were allowed to reopen subject to a large array of new H&S and Covid Hygiene Safeguards / Restrictions. To comply with these an initial complete Deep Clean of the entire Premises, Administrative, Sales Showrooms and Warehouse was required. This was then to be maintained, in all these areas, to a high standard to comply with Covid Regulations. The Employer realised that the Complainant simply did not have the capacity or more importantly the knowledge base (additional chemical cleaners/ warehouse cleaning / Covid Regs etc) to satisfactorily undertake this work. Staff returning to work were nervous and anxious. They expected the best possible Safety /Hygiene standards.

It was decided, by sheer necessity, to engage a Professional Contract Cleaning Company with the skills and experience to do the work. The Complainant’s age, sex or any other of the Protected Grounds had nothing to do with the decision.

The MD, Mr. KMcL telephone the Complainant on the 8th June 2020. The call, as far as he could recollect, was amicable. He had explained the situation, the new completely upgraded Cleaning Routines in terms of range and scope were mentioned. It was clear that this was work that was not in her capacity or experience/Training. He had suggested that she take an offer of Voluntary Severance.

He left the matter with her for a few days. In response to a query to her by e mail on the 16th June she had confirmed her acceptance, by return e mail of Voluntary redundancy. It was perfectly amicable and there was no suggestion of him “Brow Beating” her. Selection was not an issue as she was the only cleaner in the company.

It was perfectly open to the Complainant to raise a Grievance or seek a clarification face to face meeting. She had not requested either. The MD and the Complainant had always had a friendly relationship and there was no way he as trying to be Remote or Personally Distant.

 All her due entitlements, notice, holiday pay etc were paid to her. She had not raised any queries or requested additional information. She had raised a Taxation query in late September that was easily explained by the Payroll Administrator.

The Complaint to the WRC on the 14th October 2020 was unexpected and, in his view, lacked any real substance.

In vigorous Cross Examination, regarding good HR Procedures etc from the Complainant Representative, Mr. Drumm BL, Mr. KMcL maintained that the process had been perfectly amicable, and no issues of concern had ever been raised by the Complainant.

In legal Submissions the Respondent representative identified the relevant Sections of the Redundancy Payments Act, 1967 and the UD Act 1977 that applied.

It was a clear case of an amicable Voluntary Redundancy arising from a radical change, necessitated by the Covid emergency, in the operation and scope of the Cleaning functions in the Company.

2:3         CA-00040409-011: Employment Equality Act,1998

In evidence the Respondent completely refuted any Employment Equality suggestions. The work had changed utterly and none of the Protected Grounds could apply. The vastly increased new duties were carried out by a Contractor. It was up to them which of their staff to nominate and age, sex, gender etc of the Contractor was nothing to do with the Respondent.

The Voluntary Redundancy was offered on the basis that the Complainant had not got the skill sets required to undertake a major upgrade in Health, Safety and Environmental protocols dictated by the Covid emergency. None of the Protected Categories specified in the EE Act ,1998 applied.

There could not have been any Discrimination on Age Grounds as claimed.

It is proposed to consider CA- 00040409-010: Unfair Dismissal Act,1977 and CA-00040409-011: Employment Equality Act,1998 together first and then consider CA-00040409-008: Terms of Employment (Information) Act, 1994

3:1         Legal Background: UD Act,1977, Redundancy Payments Act,1967 and Equality Act 1998.

Section 6 of the UD Actt,1977 was referred to extensively. It is set out below.

Unfair dismissal.

6

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.

The key question is whether or not the Complainant is this case was subject to a legitimate and lawful redundancy.

Assistance has to be sought from the Redundancy Payments Act,1967. Section 7 is applicable.

General right to redundancy payment.

7

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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, 

 In relation to the Employment Equality Act ,1998 Section 6 Sub- section (f) refers in its prohibition of Discrimination on the Age Ground.

However, after taking the above points into consideration all cases rest on their own facts and particular circumstances. Oral evidence was central to the evidence in this case and this has to be evaluated carefully.

3: 2:        Evaluation of Evidence / Written Submission and Oral testimony.

Two key issues were evident –

3:2:1       Firstly, as major background – the need for the Employer to radically upscale the cleaning/environmental/the Covid defences of the entire premises from Reception to Warehouse. The Company had qualified as an “essential service” but to reopen and stay open they had to have very comprehensive Covid Protocols in place.

Without doubt this required the services of an expert Environmental Services Company.  Sub Sections (d)and (e) of Section 7 of the Redundancy PA,1967 quoted above would seem to be relevant here.

3:2:2       Secondly the outcome of this for the Complainant and in particular the exchanges on or about the 8th June 2020.

The Respondent Managing Director Mr. KMcL recounted his version of events of what he took to have been a reasonably amicable exchange. The situation was explained to the Complainant, Redundancy was suggested, details set out and after a number of days she accepted the proposal. Redundancy was paid in August together with all other outstanding payments and nothing further was heard (save a routine tax query in late September) effectively until the WRC complaint of the 14th October 2020. Everything had been above board, he knew the Complainant well on a day to day basis, they never had any issues with her work, but she was not capable on a skills & knowledge basis to undertake the radically different Covid Protocols required.

On the Equality Ground, Age was never an issue and as it was up to the New Contractor to select their own Personnel on whatever basis they felt suitable.

Mr KMcL refuted any suggestion that he had in some way “Browbeaten” the Complainant at any stage. On cross examination from Mr. Drumm BL for the Complainant he did acknowledge that doing the whole Redundancy over the phone without a formal face to ace meeting was probably not the ideal way. However, it was a discussion between two people who knew each other well and if the Complainant had requested to come into the Office to discuss further he would gladly have facilitated this.

On review he was a capable witness well used to the Senior Management function.

The Oral evidence from the Complainant came from a different place. She presented as a very genuine hardworking woman of 60 years of age. However, in her manner and probable background she clearly would have had difficulty seriously arguing, without representation, the case with someone like Mr. KMcL.

The question of the Respondent offering representation and or seeking an independent Legal view for the Complainant, at their expense, did not seem to have been considered. Nor was there any examination of how the Complainant might possibly be retrained or upskilled for a new role.

She did acknowledge that the Redundancy had been put to her and that she had accepted. She felt that it had been given as a “No Choices Here” option. She did take a few days to considerer and had sent the e mail of the 16th June to confirm as requested in the KMcL e mail of the 12th – 4 days earlier.

In Cross Examination she agreed that she had not raised any issues at that time and it was only after talking to some former colleagues in late September that she had considered the WRC. She had, also, in the interim discovered that the Contractor Company was using younger (to her) female staff.

3:3        Conclusions

On balance from an Adjudication point of view, having heard all the evidence supported by the submissions it was clear that a genuine Business based /Covid inspired Redundancy situation had developed.

Based on the Oral Testimony of the Parties, the written evidence given and all background factors and the careful evaluation of same it was clear that the entire work situation both in size, complexity and required skill knowledge had changed completely following Covid.

It was very hard, on the balance of all the new factors, to see the Complainant being able to adapt satisfactorily to the new scenario.

Redundancy for the Complainant was the only realistic option.

The actual handling of the redundancy had a number of shortfalls in questions of Representation and lack of face to face meetings. However, while undesirable these shortfalls do not take from the overall conclusion of a legitimate Redundancy. Professional Representation, Face of Face meetings and a possible Appeal Hearing would not, in the Adjudication view, have changed the outcome.

As regards the Equality Complaint the Adjudication view has to be that the case lacked a strong enough prima facie basis to sustain a complaint of Age discrimination.

3:4       Summary Conclusion. Unfair Dismissal and Equality.

A genuine Redundancy existed and while it had a few procedural shortfalls the case under the Unfair Dismissals Act,1977 does not stand. No Unfair Dismissal took place.

There was not sufficient basis to support a direct Age-related Discrimination case under the Employment Equality Act,1998. The Equality Complaint fails.

3:5       CA-00040409-008: Terms of Employment (Information) Act, 1994

There was a major difference of opinion here between the Parties. On balance the Respondent presented as having a reasonably well-run business. The Contract of Employment was on file and signed by the Complainant. On the pure balance of probabilities, I found it hard to see the case that a personal copy had never been given to the Complainant in or around 2015. There was some doubt in the Parties recollections on this point although the Respondent had a more definite view.

 In any event the copy was on file for the Complainant.

The Complaint lacks substance and has to be seen as Not Well Founded.

Unfair Dismissal, Redundancy, Covid Impact, Terms and Conditions of Employment Information.