Complainant

Respondent

Parties

Kevin  McCrave

Murphy International Limited Murphy Process Engineering

Representatives

Self-represented. 

Cheryl Treanor , Construction Industry Federation

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-00043869-003

04/05/2021

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

CA-00044236-001

19/05/2021

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

CA-00044236-002

19/05/2021

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

CA-00044236-003

19/05/2021

The Complainant was employed as a Commissioning Engineer by the respondent company. The respondent, Murphy International Ltd. acquired Aecom Design and Build in February 2017 and the claimant transferred to what is now known as Murphy Process Engineering Ltd. through TUPE. Employment commenced on 3rd November 1992 and ended on 4th December 2020.

Complaints were received by the Workplace Relations Commission on 4th May and 19th May 2020.

Preliminary Points

Statutory Time Limits

Claim under Payment of Wage Act, 1991

Section 41(6) of the Workplace Relations Act, 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant submitted his complaint to the Workplace Relations Commission (WRC) on 19 May 2021. The Complainant has alleged that he should have received payment of €256,000 on 4 April 2016. The Complainant is claiming that he is allegedly owed for time on call and overtime between 2010 - 2016. The HR Manager for the respondent, Alan Dodrill, can confirm that the Complainant did not raise this with HR since Mr. Dodrill commenced with the respondent in January 2018. Nevertheless, the Complainant is outside of the statutory time limits set by section 41(6) of the Workplace Relations Act, 2015. The Complainant is also outside of the extended time limits where reasonable cause can be demonstrated in accordance with section 41(8) of the Workplace Relations Act 2015.

The time limit set out under Section 41(6) of the Workplace Relations Act 2015 was considered in A Fitter v A Construction Company - ADJ-000164 50. In this case, the Complainant commenced employment on 30 November 2017 and his employment ended on 10 August 2018. As his claim was submitted on 24 August 2018, the referable period therefore dated from 25 February 2018 to 10 August 2018. The time limit was also applied in A Scaffolder v A Scaffolding Company-ADJ-00026188.

Therefore, we respectfully submit that the complaint is outside of the statutory time limits and the WRC do not have jurisdiction to hear this claim.

Claim under Section 8 of the Unfair Dismissals Act, 1977

The Complainant was employed as a Commissioning Engineer for the respondent company. The respondent, Murphy International Ltd. acquired Aecom Design and Build in February 2017 and the Complainant transferred to what is now known as Murphy Process Engineering Ltd. through TUPE. The Complainant's position was redundant in December 2020 when the Staleen & Cavan Hill project in Co. Louth began to wind down and the commissioning work on that site had completed.

Murphy International Ltd are traditionally a family-owned civil engineering company. In 2017, Murphy International Ltd. took over Aecom Design and Build, resulting in the respondent's acquiring wastewater treatment projects. The County Council were originally Aecom's main client. However, with the advent of Irish Water in 2015, Irish Water became the respondent's main client.

While the respondents had some initial tender wins, such as Staleen & Cavan Hill, Co. Louth, Ringsend and Stillorgan, Co. Dublin, Birr/Tullamore, Co. Offaly, and Lee Road, Co. Cork, they have failed to win any new work from Irish Water in the last 12+ months. The respondents have lost out to other contractors for work tendered in Ringsend (worth €30m), Arklow (worth €80m) and Kilmore Quay (worth €8m). Tendering work with Irish Water has dropped back considerably during Covid-19 and is not showing any initial signs of picking up in the remainder of 2021, up to at least mid-2022.

As Irish Water is an independent privately owned organisation, they have heavily invested in development and new technologies. Irish Water now conduct their own commissioning work and collect the data obtained to make their own reports and assessments on the quality of the water. The respondents have had to adapt their business model to fit the needs of Irish Water to be able to secure work in the future.

Murphy International were losing tenders with Irish Water and they had a lack of work in the Water Department since the last project completed in Cavan Hill in Co. Louth. The respondents had no commissioning work in 2020 or 2021. The loss of these tenders had a significant adverse effect on the respondent company. When the Cavan Hill project was finishing, workers on that project were made redundant because the respondent had no new work in the pipeline and no other alternatives to redundancy.

Statement of Factual Background

In April 2020, Anthony Brennan, transferred from Northern Ireland (NI) to the Republic of Ireland (ROI). Mr. Brennan was experienced in projects in ROI and NI and he had strong relationships with the key stakeholders, so he had a good understanding of the operations of the ROI Water Department. Mr. Brennan took over the position of Operations Director for Water for the respondent when the previous Operations Director retired.

At the end of November 2020, the Staleen and Cavan Hill Co. Louth project had been confirmed by Irish Water as having passed its contractual performance test, it was therefore deemed to have been commissioned with commissioning and optimisation work on the project effectively complete. There was no longer a requirement for a Commissioning Engineer on site. Mr. Brennan reviewed other sites within the organisation and unfortunately, there was no requirement for a Commissioning Engineer or any other suitable role on any other site the respondents operated. The respondent had lost tenders with their main client, Irish Water. The respondents had no future work available to offer the Complainant.

The first redundancy consultation meeting took place with the Complainant on 23rd October 2020. At thismeeting Mr. Brennan explained to the Complainant why his position was at risk of redundancy.Mr.Brennan explained that commissioning on the Cavan Hill Water Project had reached completion andtherewasnolongerarequirementfortheComplainant'sskillset.Mr.BrennanexplainedthattheComplainant' s specialist skillset would not be required on Irish Water Projects tothe same extent as IrishWater were now conducting commissioning work internally. Mr. Brennan informed the Complainant thathe would explore the possibility of alternative for the Complainant on a larger project operated by therespondent in Huddersfield,Yorkshire UK. Mr.Brennan explained to the Complainant that both he andthe company needed to reflect and consider all alternatives. Mr. Brennan informed the Complainant thathe would enquire as towhat redundancy would mean for the Complainant and he would explore anyalternativeemploymentopportunitieswithintheorganisation.

The next consultation meeting took place on 19 November 2020. Mr. Brennan informed the Complainantthat the possibility of working on the Huddersfield project was no longer a viable option as it turnedout there were no vacancies. Mr. Brennan informed the Complainant that there were no alternativepositions as the company had lost out on tenders to Irish Water and the company were reducing itshead count within the water division. The Complainant did not raise any alternative roles that he wouldbe interested in. The Complainant agreed that there were no suitable alternatives to redundancy. AlanDodrill, the HR Manager for the respondent, attended the meeting and explained to the Complainant thathe would be entitled to statutory redundancy. The Complainant responded saying "be careful of that word statutory."

Mr. Dodrill emailed the Complainant on 23rd November 2020 outlining that the final payment for his statutory redundancy would be €34,464. The Complainant responded on Monday, 30 November stating that he was rejecting the redundancy amount. Mr. Dodrill responded to the Complainant on the same date stating that the dates were not set in stone and Mr. Dodrill asked the Complainant what he understood the consultation start date to be. Mr. Dodrill explained that he used the date of the initial consultation between Mr. Brennan and the Complainant. The Complainant did not respond to this email.

On Thursday, 3rd December 2020, Mr. Dodrill wrote to the Complainant to confirm that his role was redundant. Mr. Dodrill confirmed that, regrettably, he had to issue the Complainant with formal notice as it was agreed and accepted by the Complainant that there were no suitable alternatives to redundancy. Mr. Dodrill confirmed that the Complainant was entitled to 8 weeks' notice and his leave date was 15th January 2021. Mr. Dodrill thanked the Complainant for his valuable service to the company and said that he would be happy to discuss the opportunity of the Complainant returning to the company in the future should the company's circumstances improve.

On 4th December 2020, the Complainant wrote to Mr. Dodrill accepting that at the meeting he had withMr. Brennanon 23rd October2020,itwasdiscussed that the issueofredundancywouldbeinvestigated along with alternative employmentand that the Complainant would consider alternativeemployment. The Complainant also accepted that an alternative was put to him at the meeting of 23rdOctober. However, the Complainant raised that he understood the redundancy process to be a voluntaryredundancy process. He also raised in this email that he now believed that there were alternativeemploymentoptionsandclaimedtherewerelivejobsabouttobecommissionedwithintheorganisation.

Mr. Dodrill replied to the Complainant the same day noting that the Complainant was clearly asked at the meeting of 19th November if he had any alternatives to offer since his initial discussions with Mr. Brennan on 23rd October and the Complainant stated he had not. Mr. Dodrill highlighted that the Complainant was advised at the meeting of 19th November that Mr. Dodrill would be preparing a statutory calculation to which the Complainant responded, "be careful of that word statutory", so he was clearly aware of the situation. Mr. Dodrill confirmed that there was never any mention of voluntary redundancy at the meeting of 19 November. The company noted that they gave an adequate consultation time of six weeks in total from the first meeting until the date his notice period began.

Fair Selection

The respondent company are originally a civil engineering company who took over a wastewater treatment company in 2017. The respondent's redundancy policy is that redundancy takes place on a site by site basis and selection is based on all things being equal with regard to skills and experience, then last in first out applies.

Redundancy on a site-by-site basis has been accepted by the EAT in Tony Kileen v L.M. Keating (UD717/2007), Wayne Kirwan v Bronzone Ltd (UD218/2008), Employee v Employer (UD672/2009) and Employee v Employer (UD1678/2010).

The respondents received the completion certificate from Irish Water for the Cavan Hill project on 24 November 2020. As the commissioning work was completed there was no longer a requirement for the Complainant's role on this site. Mr. Brennan considered other sites and identified that there may have possibly been a position on the site in Huddersfield, Yorkshire. However, it transpired the Huddersfield site was not a viable option. There was no requirement for the Complainant's skillset on any other site within the organisation and there were no vacancies at the time. The company had lost tenders and were reducing headcount within the organisation.

As the respondents had no new commissioning work in 2020 or 2021, there was no commissioning work to offer the Complainant in 2020 or 2021. They did not have any other suitable vacancies to match the Complainant's skillset.

The Project Manager and the Assistant Contracts Manager who were on Cavan Hill project were also made redundant. There have been other redundancies across other sectors of the business, including a Senior Administrator, General Foreman and Construction Manager. The Complainant was not unfairly selected for redundancy.

Allegation that the company replaced the Complainant with Braddox

In April 2020, Mr. Brennan attended the Cavan Hill Treatment Plant where the Complainant was working to review the sludge treatment process which was performing particularly poorly. Mr. Brennan diagnosed that a failure to electrically commission the sludge works properly was the likely reason for the poor performance cited in the Complainant's report. On this basis, Mr.   Brennan directed a specialist in this field, Braddox Industrial Services, an Electrical Commissioning Engineer, to attend the works and support the Complainant to rectify the poorly performing plant.

Marc Brennan of Braddox Industrial Services is a RECI certified electrician experienced in testing electrical circuitry and motors, and this is a distinct skillset to that of the Complainant, who is a Water Treatment Commissioning Engineer. The two skillsets complement each other rather than compete. Without equipment being properly electrically commissioned it is not possible to process commission a treatment plant.

Braddox Industrial Service has worked for the respondent company predominantly in NI and the border counties of ROI, such as Louth, Monaghan, Sligo and Donegal as they are based in this region. Braddox are currently undertaking electrical testing services for the respondent in South East Water in the UK and are not involved in the projects in ROI that were cited by the Complainant in his claim papers, Birr/Tullamore or Cork City.

With regard to the Complainant's final role on the Cavan Hill project and his allegation of a third-party contractor being brought in to undermine his position, it is important to note that Braddox Industrial Services supported the Complainant at Cavanhill on the Louth project in his role from April to September 2020 to rectify electrical plant and instrumentation defects which were contributing to delays and inaccuracies in the commission process. Braddox departed from this project in early September and the Complainant remained on this project to complete the commissioning process which upon completion at the end of November 2020, the respondents had no further role for the Complainant.

GenuineRedundancy

A genuine redundancy situation existed in accordance with section 7(2)(B) of the Redundancy Payments Act 1967. Furthermore, in accordance with the Unfair Dismissals Act 1977 - 2005, the Complainant's employment terminated "wholly or mainly" due to a redundancy situation. The reason the Complainant's employment terminated was due to a redundancy situation as there was no longer a requirement for a water commissioning engineer with the completion of the commissioning work on the Cavan Hill project and a significant reduction in work for the respondent with the loss of tenders for new work with Irish Water. Additionally, Irish Water were now undertaking their own commissioning and optimisation works, so there was a limited requirement for the Complainant's skillset for future works with Irish Water. The Complainant was treated fairly, and the respondent engaged in a redundancy consultation process with the Complainant. The Complainant was kept fully informed of the situation and given ample opportunity to suggest any alternatives to the proposed redundancy, to which he had no suggestions. The respondent also explored possible alternatives to redundancy.

The Complainant was made redundant in line with section 7(2)(8) of the Redundancy Payment Act:

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.

In A General Operative v An Employer (ADJ-00019921) the respondent submitted that they decided to reduce the head count and allow skilled workers to absorb the duties of those done by a "Helper" as it transpired the site did not require a full-time helper. In this case, the Complainant argued that the reason for his dismissal was due to his trade union membership. The Adjudicator held "There was no compelling evidenceto demonstrate that the dismissal, "trojan horse or otherwise, was due to the Complainant seeking advice from or his membership of a trade union. The Adjudicator held that the dismissal was not unfair, a genuine redundancy situation existed, and the respondent acted reasonably and applied fair procedures, despite the fact that the dismissal was referred to as a "trojan horse" dismissal.

In A Laboratory Manager v A Consulting Company (ADJ-00009855}, the Complainant alleged that his position should not have been made redundant, and a contrived redundancy was manufactured in his case as a means of penalisation for him having raised a complaint against the respondent to the WRC. The Adjudicator found that the Respondent had significant financial and business reasoning for reducing its workforce. In having conducted a full and fair process, it was determined that the Complainant's employment was terminated because of a genuine redundancy situation and substantial grounds existed for same.

Both cases provide examples of genuine redundancies carried out by an employer where an employee has alleged that the dismissal was unfair and due to other reasons. The decision to make the Complainant's position redundant was solely due to his position being made redundant. This is evidenced by the fact that the Complainant's position was not replaced and there were others on the Cavan Hill project who were also made redundant.

The Employment Appeals Tribunal in Employee v Employer (UD545/2008) were critical of the fact that the Complainant had not been furnished with a contract of employment or handbook dealing with details of its redundancy policy, and the fact that there was no proper consultation with the Complainant in relation to the impending redundancy. However, the EAT still found that a genuine redundancy situation existed and the claim under the Unfair Dismissals Act failed.

In JVC Europe Ltd v Panisi (2011] IEHC 279, Charleton J stated:

"It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an      employee go should be examined                  "

The respondents considered alternatives to making the Complainant's role redundant. Mr. Brennan reviewed all of the projects the respondent had operating at the time and the possibility of any future work. Mr. Brennan believed there was a possibility of a position available in Huddersfield in the UK and Mr. Brennan explored this idea with the Complainant at the consultation meeting of 23rd October. When Mr.  Brennan made further enquiries, it transpired that there were no vacancies available for the Complainant. Mr. Brennan informed the Complainant that this was no longer a viable alternative at a follow up consultation meeting on 19 November. Mr. Brennan had asked the Complainant to consider any alternatives to redundancy at the meeting of 23 October. At the follow up consultation meeting on 19 November, the Complainant did not make any suggestions as to alternatives to redundancy and he agreed that there were no suitable alternatives.

Claim for Re-instatement

No suitable role for the Complainant

There is no suitable position available for the Complainant within the respondent company. Before Irish Water, the Local Authority were the respondent's main client. The projects AECOM had with county councils usually lasted 4-5 years. AECOM would tender for work and usually have another project lined up to be able to send the workers to when the project they were working on came to an end. Irish Water, an independent and private company, have made substantial investment and development which had the effect of reducing the duration of the projects. The Cavan Hill site that the Complainant had been working on only lasted two years from a commissioning perspective. The respondents had tendered for more work with Irish Water but unfortunately, they lost out on these tenders.

When the commissioning work was completed on the Cavan Hill site, the Complainant's position was redundant as there were no suitable alternatives. As the project was coming to an end, other employees were also made redundant, including the Project Manager and Assistant Contracts Manager.

While the respondents did consider alternative options for the Complainant, these options were not viable. There were no vacancies on any other site the respondent was operating. The respondent company were reducing head count within the water division having lost out on work with Irish Water.

The respondent had to change their model of work to try and secure tenders with Irish Water. As Irish Water have developed and invested in their business over the last few years, they are conducting more of the commissioning work internally. The respondent had to produce a work model to suit Irish Water's needs in order to be able to secure future projects with Irish Water. This new work model means that future commissioning work carried out by the respondent will be minimal if at all and in no way will a full-time resource be required.

Breach of Trust

There is a breakdown in trust in the relationship between the Complainant and the respondent. The Complainant has made a number of false accusations against both Mr. Brennan and Mr. Dodrill.

The Complainant alleges that no one met with him when he was issued with his contract. This statement isuntrue.Mr.Dodrill,HRManagermetwiththeComplainantuponissuinghimwithanup-to-datecontractinJanuary2018.

The Complainant alleges that the respondent took on Braddox Industrial Services to replace him and that the Complainant was not offered work on the other projects because this was given to Braddox Industrial Services. This accusation against the respondent is completely fabricated. Braddox Industrial Services were taken on short term in a specialist capacity to assist the Complainant on the Cavan Hill project. Braddox completed their works in early September and the Complainant continued working on the Cavan Hill project until the commissioning work was completed. Braddox Industrial Services did not do any work on Tullamore or Cork projects as alleged by the Complainant.

The Complainant states that if he informed management that he had an operation he was afraid he would have been marginalised. The company have never given him any reason to believe he would be marginalised.

The Complainant states that it was agreed at the meetings of 23 October and 19 November that Mr. Dodrill would discuss the "offer" with him and the Complainant would "make a decision". This was not agreed at either meeting. It was clearly set out to the Complainant that it was a redundancy situation and at the meeting of 19 November, the Complainant was informed that redundancy would be statutory redundancy. The Complainant subsequently claimed he was being offered voluntary redundancy. This is simply not t rue.

The Complainant alleges that he was ostracized by management which is completely untrue. The Complainant alleges he was given "the worst jobs, travelling around the country or living and working on the west coast of Ireland in the middle of winter." The nature of the work means that workers have to travel around the country. The Complainant has never raised a grievance to have his concerns addressed through the company's procedures since he transferred under TUPE to Murphy International.

Conclusion

In summary,

A genuine redundancy situation existed. The site that the Complainant was working on was winding down and the commissioning work had completed. Other workers on the site were made redundant and the Complainant' s position was not replaced.

The respondents lost out on several tenders with Irish Water which meant that they had no future work available to offer the Complainant. In response, to lost tenders, the respondent had to change the business model. As Irish Water are now doing their own commissioning work, the respondent had to adapt. Future tenders to Irish Water made by the respondent will no longer include the services of a fulltime commissioning engineer.

The Complainant was fairly selected for redundancy. The respondents operate redundancy on a sit e-by-site basis in line with the generally accepted redundancy policy in the construction industry.

The respondents engaged in a consultation process with the Complainant. The redundancy process was explained to the Complainant. A potential alternative to redundancy was discussed with the Complainant. The Complainant was asked to consider any alternatives that he could suggest to the respondents. The Complainant did not suggest any alternatives to redundancy during the consultation meetings.

The Complainant received €34,464 in statutory redundancy pay and €11,848 in notice pay. At no time did the respondents ever inform the Complainant that voluntary redundancy was being considered. Mr. Dodrill clearly explained to the Complainant that it was statutory redundancy pay at the meeting of 19 November 2020.

The Complainant is seeking re-instatement. However, there is no available position for the Complainant within the organisation. As Irish Water conduct a significant element of their own commissioning works, the respondents no longer require the skillset of commissioning engineer. There are no other available positions for the Complainant within the organisation.

Further, there has been a break down in the employee / employer relationship with the Complainant making several false accusations against management. He states he was marginalised and ostracized which is simply not true and there is no evidence to support this allegation.

As a genuine redundancy situation existed where the Complainant was fairly selected and consulted, it is respectfully submitted that this claim under the Unfair Dismissal Act fails.

The Complainant joined the Respondent Company in April 1990, worked as Commissioning Engineer, was laid off in 1991 and re-joined in November 1992. During his tenure with the Respondent organisation he held various titles: Plant Supervisor and Plant Manager when he ran these plants for more than a year. The Complainant had 28 years until 4th of December 2020.

The Respondent company is a mechanical/ electrical company which fits out and sets up, meaning starting the process of cleaning water for drinking or cleaning waste water for disposal, hence process control of municipal water and wastewater treatment plants around Ireland.

 The company employed around 100 staff, mainly engineers and business people. Groups of 8 -10 would be involved in one treatment plant building and “commissioning “it. Commissioning involved taking the water in and treating it with chemicals to make it drinkable or treating sewage, so it is less harmful. This work of setting up the process for treatment is covered by “process engineers “or “commissioning engineers”. (The Complainant contends that he was the first under his manager in 1990 and since then the company have taken on process managers or commissioning managers about 15 to 20 in total).

Two directors ran the company, B. Fenton and C. Bateman up until 2015 when B. Fenton left the company. C. Bateman remained in sole in charge until the company was taken over by Murphy builders now called Murphy Process Engineering.

The Complainant states that he was a process engineer or commissioning engineer and from 1990 he would travel around the country living on site and setting up these water and waste water treatment plants usually with Mechanical Fitters and Electricians.

 Each Plant or job or group of 8 people would have an overall Project Manager, usually but not always, the Complainant was responsible to Billy Sheill when the job was going on. His line manager was Sean Devoy and Pat Phibbs, they were in charge of the laboratory, in the office and for running something like 10-15 water /wastewater treatment plants.

At times when the Complainant was not commissioning a water treatment plant he would be back in the office preparing for the next job or working on a tender for a job or working on one of the 10-15 plants that needed an extra hand.

The Complainant felt that this fine until around 2010 when he ended up working on Ballymore Eustace Water treatment works. The Complainant states that he worked there all the time, water does not understand the concept of weeks and Christmas holidays. This was an existing plant, the biggest in Ireland and he was working there non- stop and on call day and night as well as monitoring the plant remotely at home via a laptop. The Complainant worked on that job for 6 years because it was so big. He was being paid a basic weekly wage of 37.25 hrs per week with no overtime.

The Complainant became aware that some others were being paid over time and he approached Billy Sheill for payment for the hours he worked overtime up to November2011 and he said send in an email with the hours. The Complainant did this, the hours were 1480. The Complainant received a phone call on the way home around from Mr Sheill that he could get a third-party sub-contractor to come and refurbish his house to the equivalent value of the 1480 hours. This was a common practice by the senior staff and a number have had houses built and sheds built, and extensions made by third party subcontractors with materials purchased by the company and all billed to the company.

The Complainant stated that he knew enough to know this was not right and said this to him and then informed Mr. Sheill that he didn’t mind paying tax.

Since then nothing has happened. The Complainant was never paid any overtime that he worked on that site and when the job was almost finished in 2016 he decided he had had enough watching others get paid over time. The Complainant contacted B. Fenton the director, a few days before he left, he said he would see what he could do. He did nothing. The Complainant then contacted C. Bateman in or around September 2018 having asked his line manager and P. Phibbs for work as he had nothing to fill in on his time sheet.

It was becoming clear to the Complainant that he was no longer wanted, and he made that clear to them. He was told to talk to C. Bateman and he wrote an email to him and had a meeting sometime later about his salary, the level he was at for the type of car he should have, about the relationship with his line manager and also the money he was owed from overtime. The Complainant  told him he was always full time and it was impossible to be part time if you were on call 24 hours a day in Ballymore Eustace or after he finished in Ballymore he went to Lough Mask water treatment plant in Mayo and lived on site and said it was clear he couldn’t be working part - time there also  was his involvement in 70 small group schemes in Carlow/ Kilkenny where he had to do reports on them just him and one other person and it would not be possible to do that in a year and be part - time. The Complainant asked him about these things and nothing seemed to change, he waited and sought another meeting about the same things and nothing changed and finally a third meeting still nothing had changed.

In 2017 two large plants, Drogheda and Dundalk became due for refurbishment. Normally, the Complainant would be asked to lead the team on processing as he was the most senior Processing person in the company with the most experience. The Complainant’s line manager chose another person with half the length of experience as the Complainant and the Complainant ended up working on a small sludge belt press at one of the plants, scraping sludge off a press on a daily basis, effectively demoted though he continued to do his job with diligence.

The new head of engineering was appointed in or around April 2020. He arrived on site as the sludge press was having problems mainly due to age. There was a failure of one of the tanks and Mr. Brennan (the new head of engineering) placed his cousin, Mark Brennan and his company Braddox Engineering alongside the Complainant and this move effectively relegated the Complainant to a junior operative position. The cousin ended up as a third-party commissioning engineer on everything that the Complainant would have done in the past. He would have been paid approximately 10 k per month. The Complainant contends that he has been informed that the cousin is now involved in all the jobs currently on- going in the south of Ireland, Foxes glenn, Tullamore Birr and Cork city water treatment, jobs which he was now excluded from.

The Complainant was called into the office on October 23rd, 2020 for a meeting with Anthony Brennan. No one else was there and no minutes were taken, the Complainant wasn’t told in advance what it was about, he understood that this was an informal meeting to discuss effectively where he would go next, this had been the process that occurred in the past and he had no reason to believe things were going to change. The Complainant was shocked with the content of the meeting.

The Complainant did ask what the alternatives were for work and was told only the UK and Huddersfield. The Complainant felt this was untrue as Birr and Tullamore and Cork were being commissioned and he was the most senior person. The Complainant began to suspect that he was saving these jobs for his cousin Mark Brennan and Braddox Engineering to commission

The Complainant said he would check out the Huddersfield job before the next meeting.  Anthony Brennan stated he would check out the redundancy situation for then as well. At no time was the Complainant told this was compulsory redundancy or that there was a 30-day consultancy or that his job was in danger. This was a difficult time for the Complainant as he was having health problems and he put the company on notice that he was taking sick leave.  Three days after the meeting THE Complainant went off work sick as he had to have surgery in the Mater Hospital and returned to work about a week and a half later.  The Complainant was fearful that if he stayed off work any longer or if he declared that he had an operation that he would be somehow more marginalised.

On November the 19th the Complainant met with Mr. Brennan again and was asked to wait for a conference call with the HR person Alan Dodrill. The meeting with Alan Dodrill was quite short again, no minutes taken, and no one present to assist, and the issue of redundancy came up. Mr.  Dodderill mentioned something about statutory redundancy and the Complainant said that was not something that would be discussed as he still understood that this was an investigation into finding work for him and that this was new.

 Mr. Brennan seemed to have changed the situation as now he was rowing back on alternative work in the UK and Huddersfield and stated during the meeting and without warning that the Complainant couldn’t go over to the UK during the Covid pandemic to work and the situation re vaccines was still to be established. The Complainant is of the opinion that any delay would only be a short time delay and if necessary he would have gone on furlough if offered, he was prepared and willing to go to the UK as he had spoken to the Contract manager on the job in Hudddersfield and he appeared happy for the Complainant to go.

The Complainant left the meeting thinking that they were going to make him an offer of voluntary redundancy but that he could continue working. The Complainant was offered 34 k as a Statutory Redundancy and he wrote by email to Alan Dodrill stating that he would like to decline his offer as agreed at the meeting on the 19th that he would discuss the offer and he would make his decision.

 Alan Dodrill wrote back stating that he had not heard from the Complainant and proceeded to officially inform the Complainant that he was redundant, and he was sending on a letter to the Complainant.

 The Complainant wrote back explaining that this was never an involuntary redundancy and that he was wrong about his representation of what was discussed at these meetings.

The Complainant contends that Mr Dodrill could not know what was said at the first meeting because he was not present at said meeting, it was clear that he, under instruction from Anthony Brennan and or Chris Bateman wanted the Complainant out of the company.

The Complainant’s role in the company, as the most experienced Commissioning Engineer was whittled away when he returned from being on site at Ballymore Eustace and coincided with the takeover of the company by Murphy's.

The Complainant states that his manager failed to help when him when he looked for new work and he was ostracised because he spoke out against some of the practices that were going on in the company. He was given the worst jobs, travelling around the country or living and working on the west coast of Ireland in the middle of winter. He was finally relegated to commissioning a sludge press in Dundalk and was undermined at every turn by more senior people who sought to undermine him and enhance their own role.

 The Complainant received no support from his line manager and was effectively left to be undermined. A third-party sub-contractor who was a cousin of the company director was brought in to undermine his position.

Finally, he was selected for redundancy without any proper consultation at a time when he was seriously ill, and the company failed to follow any or fair procedures and in effect was unfairly dismissed.

 The Complainant had commissioned something in the order of 20-30 municipal water and wastewater treatment plants and has even sat on the committee that set the boundaries for disinfecting water and the standard to be applied for water treatment overseen by the EPA.

The Complainant believes that he is one of the most experienced commissioning engineers in the country and therefore believes he has been unfairly dismissed.

CA – 00043869 – 003 & CA – 00044236 – 001 – complaints submitted under s.8 of the Unfair Dismissals Act, 1977.

The Complainant contends that he was unfairly dismissed. There is no dispute that a dismissal took place however the Respondent argues that it was a dismissal by reason of a redundancy.

What is Redundancy?

The definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by the Redundancy Payments Act 1971 and 2003 –

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.

As per submission the Respondent has quite clearly stated that a genuine redundancy situation existed. The site that the Complainant was working on was winding down and the commissioning work had completed. Other workers on the site were made redundant and the Complainant' s position was not replaced.

The respondents lost out on several tenders with Irish Water which meant that they had no future work available to offer the Complainant. In response, to lost tenders, the respondent had to change the business model. As Irish Water are now doing their own commissioning work, the respondent had to adapt. Future tenders to Irish Water made by the respondent will no longer include the services of a fulltime commissioning engineer.

The Complainant was fairly selected for redundancy. The respondents operate redundancy on a site-by-site basis in line with the generally accepted redundancy policy in the construction industry.

I cannot disagree with the Respondent and the explanation as to why the Complainant’s position was being made redundant.

I have no option but to find that the complaint as presented is not well founded.

CA – 00044236 – 002 – complaint submitted under s.6 of the Payment of Wages Act, 1991. Section 6(4) of the Act reads as follows:

Section 6 (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.

Section 41(6).

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The subject matter for this complaint was the non-payment of overtime worked by the Complainant between 2011 and 2016.

Unfortunately, this is well outside the time limits and I therefore must dismiss the complaint.

CA – 00044236 – 003 – complaint submitted under section 7 of the Terms of Employment (Information) Act,1994.

The Complainant was issued with an up to date Statement of Main Terms and Conditions of Employment in January 2018. The Complainant failed to return a sign copy of his Statement of Main Terms and Conditions of Employment. However, the respondent complied with their obligations under the Terms of Employment (Information) Act, 1994 by issuing the Complainant with an up to date Statement of Main Terms and Conditions of Employment with the relevant provisions required by the Act.

This complaint as submitted under section 7 of the Terms of Employment (Information) Act, 1994 is not well founded.

As outlined above.

Unfair Dismissals Act, 1977; Terms of Employment (Information) Act, 1994; Payment of Wages Act, 1991.