Complainant

Respondent

Parties

Gary  O' Sullivan

Colman Ryan, Margaret Ryan And Michael Ryan , Frankfield House

Complainant

Respondent

Representatives

Robert O'Keeffe , Solicitor of Coakley Moloney

Ruairi O'Cathain , Solicitor of Conways 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-00043165-001

22/03/2021

The issue in contention concerns the alleged Unfair Dismissal of a Greenkeeper by a Golf Driving    Range and Golf School.

The employment began on the 22nd October 2007 and ended on the 25th September 2020.

The rate of pay was €520 for a 40-hour week.

The Complainant submitted a written submission and gave an extensive Oral Testimony.

The Complainant, in his oral testimony, stated that had worked at the facility, without incident since 2007. On the 29th July 2020 he had a heated argument with Mr.CR, one of the owners. This was during a severe Thunderstorm with many Golfers crowding, without masks, into sheltered areas. It was still in the Covid period and he was worried for his own health and that of his elderly mother whom he visited on a regular basis.

The following day he was asked by Mr.MR, brother of CR to take two weeks holidays to allow things to “cool down”. He was later invited to a meeting off site on the 15th August 2020. At this meeting he was handed a letter of dismissal – purportedly due to redundancy. He was not informed in advance of the subject matter of the meeting, had no representation and was not allowed any Appeal. He alleged he was told by the Respondents to “take the offer of redundancy or take the side of the road”. No discussion of his work options as an alternative to Redundancy were allowed.  He left feeling hurt and upset after many years of long service.

He felt he had no option but to accept the offer. Afterwards he used his Golfing industry contacts to secure another position on another Golf facility. It was initially at a lower rate of pay.

He was fully cross examined by Mr. O’Cathain for the Respondent.

The Respondent gave an Oral submission supported by a number of documents.

Principal witness was Mr.MR supported by Mr CR -both Mangers of the Firm. He gave a brief history of the Golf Facility. It had originally had a Golf course but in recent years had been surrounded by suburban housing. Operation of the Club had finished a few years ago and the driving range and School were now what remained together with a Restaurant. Even this was causing issues as golf balls from the Range were regularly being driven out of bounds and damaging neighbouring properties and unfortunately even resulting in personal injuries to individuals struck by errant overshooting golf balls. The size of the Range had been curtailed to try and avoid the overshooting problems. Naturally this had an impact on revenues.

With the advent of Covid the income of the business had fallen away dramatically and when taken with the existing problems radical action was required. It was with great regret that they had to make the Complainant redundant. it was business survival issue. He was paid substantial Statutory redundancy and paid in lieu of having to work his notice. It was all set out in the letter of the 15th August 2020.

As regards selection the complaint was the only full time Greenkeeper and the only other permanent staff were the Bar Personnel in the Restaurant. They were not interchangeable.

They became aware that he had secured comparable Golf industry income not too long after leaving the employment.

In vigorous cross examination, by Mr. O’Keefe for the Complainant, the Respondent agreed that no Appeal had been offered. It was a regrettable business decision but there was no choice. Some time was devoted to a lengthy discussion of the events of the 29th July and the alteration with Mr CR. It was a day of a most severe thunderstorm with very heavy rain. Tempers had got frayed particularly when a lot of customers were crowded in to small area and the golf ball machines for the indoor Range broke down.

However, it could not be argued that the altercation with Mr CR had been a deciding factor in the Redundancy. The issue of what inter Party communications had taken place prior to the 15th August was discussed. Considerable text messages were exhibited in evidence, but the view appeared to be that as the Complaint was on Holidays he should not be actively contacted.

On balance from the Respondent point of view it was a regrettable business decision, but the Complainant had appeared quite happy to take his Statutory Payment and soon after secured an alternative position.

3:1        The Relevant Law.

The Unfair Dismissals Act,1977 & 1993, Si 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures and the Redundancy Payments Act,1967, Legal precedents

Section 6 (4) of the UD Act ,1977 is quoted below.

(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.

Section 4, Subsection 4 (c) allows Redundancy as a genuine defence to a claim of Unfair Dismissal. However, following all legal precedents, a Redundancy has to be “genuine” and not a “cloak” for other issues – basically an Employer agenda to get rid of an employee they no longer, for whatever reason, wish to keep in their employment. The rules of Natural Justice are paramount at all times.

The Redundancy issue is discussed at length in Section 21-141 of Frances Meenan “Employment Law” 2014 Edition and by Desmond Ryan in Chapter 21 of Redmond on Dismissal Law, 3rd Edition 2017, Bloomsbury. The learned authors set out the need for Fairness, Proper Consultative Procedures, Consideration of alternatives to redundancy and the need to allow an Appeal against a decision. The guideline is that a redundancy has to be “Impersonal” – that it is completely divorced from any personal agendas – it is the job that is being made Redundant not the Position. Substantial case law supports the positions set out.

However, all cases rest on their own evidence and particular circumstances. These will be reviewed below.

3:2        Review of the Evidence Presented - Oral and Written.

The principal Respondent/Employer witness, Mr. MR, clearly outlined the difficulties the business was going through in the short term with Covid and the long-term issues it was facing -effectively being surrounded by suburban housing.

There appeared to be a definite business case for a Redundancy.

Notwithstanding this, the manner in which it was handled was open to question. A redundancy requires detailed prior consultation with the employee being made redundant. Alternative employment suggestions have to be considered by the Employer. Normally the employee is first informed that “he is at risk” and then follow up meetings take place until an eventual final redundancy is arrived / not arrived at. The Employee is allowed professional Representation and an opportunity to seek professional advice before accepting any final offer. An Appeal against the decision is also generally offered at this stage.

Regrettably none of these Procedural steps took place here.

The letter of the 15th August to the Complainant was effectively a “fait accompli”.

A finding of Unfair Dismissal has to be the Adjudication conclusion.

Activity, after the Redundancy, by the Complainant to secure alternative employment can be considered in the context of a possible redress award.

3:3         Summary Conclusion

The case for Unfair Dismissal stands – an Unfair Dismissal took place.

Redundancy, Unfair Dismissal Act