Complainant

Respondent

Parties

Padraig  Keyes

Bord Na Mona

Representatives

 O Donovan Mahon Cowen Solicitors

IBEC

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-00043264-001

26/03/2021

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

CA-00043264-002

26/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00043264-003

26/03/2021

The Complainant is an employee of the Respondent and at the date of the hearings was in employment with the Respondent.

He is a union member but was represented at the hearing by his solicitor.

CA-00043264-001

The Complainant's case was that he commenced employment with the Respondent as a seasonal general operative in August 2012. He worked several weeks was then laid off along with the other seasonal workers for the remainder of 2012.

He was called back to work in April/May 2013 and continued to be employed as a seasonal worker until May 2018. During these years he worked up to 10 months each year.

The Complainant's case was that from 20 May 2019 he transferred to a permanent contract and worked continuously until 30th of January 2021 without any breaks in his employment.  He submitted this was accepted practice in the Respondents organisation that as he had worked for 12 months continuously, he was considered a full-time employee.

In January 2021 he was notified verbally by his foreman that he would be on layoff on the 30 January 2021.

He submitted that his employment terminated on 30 January 2021. He explained that only seasonal workers were laid off at the time, but his employment was dismissed. He sought reinstatement to his full-time permanent position.

He submitted his claim to the WRC on 26 March 2021.

He remained out of work until 10 June 2021. He was requested to return to work on that date and he did so.

Under cross examination, the Complainant agreed that through his union he applied to the Respondent to become a full-time employee in 2020, but this application was not granted.

He submitted that the decision of the JIRC which issued on the 17 July 2020 and which referred to a framework to determine seniority for all BNM – Energy Business Employees covered by collective employment agreements with the ICTU – group of unions effective 1 August 2020 did not apply to him as the process did not commence until after he was automatically entitled to full-time employee status.

CA-00043264-002

The Complainant's case is that he did not receive anything in writing since he commenced employment with the Respondent in 2012 or since then. 

CA-00043264-003

The Complainant withdrew his complaint regarding redundancy.

CA-00043264-001

The Respondent submitted that the Complainant is a permanent employee employed in a seasonal capacity. His pattern of work incorporated union accepted periods of layoff during the fallow season.

The Respondent provided a breakdown of his employment history as a seasonal employment. The Respondent submitted that the complainant is a union member and that the historic practice of seasonal employment in the company is understood and accepted by the Group of Unions. It submitted that there were over 200 seasonal employees in the company. The Respondent explained that while the Complainant is a permanent seasonal employee, he is not automatically entitled to full-time status.

The Complainant was due to end his eighth season with the Respondent in February/March 2020, however in January 2020 the Group of Unions referred the "review of seasonal working arrangements" as one of seven issues to the Joint Industrial Relations Commission. This is the Respondents internal collective disputes resolution body.

As part of the engagement process with the JIRC, the Group of Union Secretary specifically requested, on behalf of seasonal employees -including the Complainant- that's the Respondent would not lay off seasonal employees (as would be usual at this time) while the engagement was ongoing. The Respondent agreed to this Union request and the Complainant as a union member was not laid off in these exceptional circumstances.

Additionally, due to the Covid 19 pandemic and the requirements of essential services in the Respondents case energy supply, seasonal employees were retained due to business needs. The Respondent submitted that the Complainant was not dismissed. In line with normal procedures, he was given one week's verbal notice that he was being placed on a period of lay off.

The Respondent pointed out that in the Complainant's own statement to the WRC, he stated that he was told he would be "laid off".

The Respondent submitted that the Complainant remained the employment albeit on layoff along with hundreds of other seasonal employees.

The Respondent advanced that the placement of seasonal employees on layoff was clearly established and indisputable practice in its business.

In February 2021 following an application by the Group of Unions for a full-time position on behalf of the Complainant, the Respondents HR manager clarified by correspondence that the seasonal role filled by the Complainant was reviewed and the role was deemed not to be appropriate for a permanent vacancy as the role would not continue indefinitely into the future. The letter went on to confirm that the Complainant's role would transition to a seasonal role decommissioning and rehabilitating peatlands as part of the Peatlands Climate Action Scheme. 

The letter (dated 22 February 2021) explained that as per the JIRC decision, any permanent vacancy was open to competition. Permanent employees would be considered before seasonal employees and in the event that no permanent employee considered the role, seasonal employees would be considered.

The Complainant lodged his complaint with the WRC on 26 March 2021.

CA-00043264-002

The Respondent's case is that it provided to the Complainant a comprehensive "Terms and Conditions of Employment – Seasonal RFT General Operative in the Peat Business Unit" document which complies with the provisions of the Act. It submitted that the Complainant was also provided with a letter the outset of his employment including Terms and Conditions of Employment. The Complainant also had access to the company handbook.

The HR manager gave evidence that she only started working for the Respondent in October 2020 and could not access the Complainant's HR file for before then.

CA-00043264-001

The complaint to be decided upon is that of Unfair Dismissal. To bring this complaint, the Complainant must have been dismissed. Dismissal is defined in section 1 of the Unfair Dismissals Act 1977 as

“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,

…..

Dismissal requires communication to the employee to be effective. An employee is dismissed when the employer informs him or her clearly and unequivocally that the contract of employment is at an end. (Redmond on Dismissal Law).

The test is an objective test and set out in Devaney -v- DNT Distribution Company Limited UD 412/1993.  What needs to be considered is how a reasonable employee in all the circumstances would have understood the employer's intention.

The question must be asked “what was the intention of the parties when the Complainant's foreman spoke to him in January 2021”.  Did the Respondent mean to bring the contract to an absolute end?

The evidence presented to me was that the role of seasonal workers was well established in the Respondents organisation. There was ongoing review of seasonal working arrangements and a referral was made by the Group of Unions to the JIRC on 10 January 2020 in respect of seven issues.

At a date described as January / February 2020, the Complainant through his union applied for a full-time position. This is at variance with his contention that he had an automatic entitlement to a full-time position in May 2019.

By letter 22 February 2021 the Respondents HR manager responded to this request to the Group Secretary of the Group of Unions specifically referring to the Complainant. 

The Complainant gave evidence that he was told he was being "laid off". He confirmed that seasonal employees were treated the same as him at the time.

The Complainant is employed in a unionised workplace and there are agreed procedures between the Group of Unions and the Respondent in place.

Based on the evidence presented to me, I accept that the Complainant was a seasonal worker and that he was laid off in January 2021 in accordance with the custom and practice that existed in the Respondents organisation.  He returned to the workplace in June 2021 and was in continuing employment with the Respondent at the date of the hearings.

CA-00043264-002

Section 7(2) of the Terms of Employment (Information) Act 1994 (Consolidated) sets out

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5[, 6 or 6C] shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5[, 6 or 6C], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) [in relation to a complaint of a contravention under section 3, 4, 5 or 6, and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

[(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

The Complainant gave evidence that he had no recollection of receiving anything in writing.

As stated above, the Complainant is employed in a unionised workplace and there are agreed procedures between the Group of Unions and the Respondent in place.

I was presented with a detailed booklet on Terms and Conditions of Employment for seasonal workers. This was dated March 2017.

The Respondent was unable to furnish evidence that the Complainant did receive a statement of his terms and conditions of employment either at his start date or in 2017 when the Seasonal operatives’ booklet was produced. In that booklet there is reference to pay systems included in the appendices of the WRC agreement 2016. It was clear to me that this was a structured workplace. 

I have considered this evidence and neither side is entirely convincing.  However, taking the Complainants evidence at full value and accepting that he had fallen through the cracks of a functioning HR system and he did not receive any written notification of his terms and conditions of employment, based on his union membership and the robust engagement between the Group of Unions and management of the Respondent, I cannot see how he was unduly prejudiced by the failure of the Respondent to provide the written statement. 

In accordance with clause 7 (2)(c) set out above, I require the Respondent to provide to the Complainant a written statement containing all the required particulars as set out in the Act and in accordance with clause 7 (2)(d) I consider it just and equitable having regard to all of the circumstances to make no award of compensation. 

CA-00043264-003

This complaint was withdrawn.

CA-00043264-001:  This complaint is not well founded.

CA-00043264-002:  This complaint is well founded.  In accordance with clause 7 (2)(c) set out above, I require the Respondent to provide to the Complainant a written statement containing all the required particulars as set out in the Act.  In accordance with clause 7 (2)(d) I consider it just and equitable having regard to all the circumstances to make no award of compensation. 

CA-00043264-003:  This complaint was withdrawn.

Unfair dismissal.  Seasonal worker.