Complainant

Respondent

Parties

Darragh O’Farrell

Campbell Catering Limited Trading as Aramark Ireland

Representatives

Self-represented

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00039123-001

11/08/2020

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

CA-00039123-002

11/08/2020

The complainant worked as a General Manager for the respondent between the 14th August 2017 and the 26th June 2020. He was made redundant during the Covid-19 pandemic. The complainant asserts that his dismissal was unfair. The respondent asserts that his role was redundant. There is also a holiday pay claim. The complainant was paid €5,000 per month.

The respondent outlined that it is a specialist outdoor catering provider and part of the respondent group. The business collapsed in 2020 as a result of the Covid-19 pandemic. The complainant was employed as general manager and managed a team of 100 for large sporting events. In that year, the respondent entity only provided catering to two small events, which incurred losses. The company’s future was, therefore, uncertain.

The respondent outlined that the complainant held a standalone role and was senior. He reported to the Senior Manager and had full access to the company’s finances. The complainant had managed the redundancies of others.

The respondent outlined that the lockdown was introduced in March 2020, leading to cancellation of large sporting events, for example a racing festival. On the 8th May 2020, the senior manager informed the complainant of the loss of revenue and that his role was at risk of redundancy. The complainant was issued with an at-risk letter and a consultation meeting took place remotely.

A second consultation meeting was also held online. The purpose of the second meeting was to address the issues and to discuss alternatives to redundancy. No redeployment opportunities were found for the complainant, and he was issued with redundancy letter on the 29th May 2020. He appealed the decision and there was an appeal hearing. At this, three alternative positions were discussed: in Cork, Athlone and Galway but with less pay and no van. The complainant raised the proposed salary and not having access to a van as well as the 4am start for Cork. The complainant was unsuccessful in applying for the General Manager role in Galway, which would have attracted a similar salary to his then salary.

In respect of the Organisation of Working Time complaint, the respondent outlined that the leave year ran from the 1st October to the 30th September. The complainant had worked 1,240 hours and went on lay-off. He was reinstated to pay-roll in order to be paid notice pay. He had taken annual leave over Christmas.

Evidence of the senior manager

The senior manager said that he was the complainant’s line manager and was the general manager of the respondent. The senior manager had full responsibility of the running of large events, for example in golf and racing. He was involved in the winding up of a film studio operation. When the senior manager took over the role, he advertised for a general manager and hired the complainant.  

The senior manager said that in 2020, the golf tournament and the racing festival were cancelled, so the at-risk letter was sent to the complainant. The senior manager had been more than open to review the road map set out by the complainant. The senior manager outlined that the Covid-19 pandemic had impacted all of the respondent business, but they had no visibility when sporting events would come back.

The senior manager outlined the complainant’s role was a standalone role and the business had collapsed. Other sites managed by the respondent group were still open for example a named stadium but there was nothing in the respondent entity. The senior manager thought that the complainant had been on lay-off at this time.

The senior manager outlined that he had not been involved in the incident involving the complainant and a university client. The senior manager outlined that he had selected the complainant following a competitive interview and not because of what had happened at the university. He outlined that the studio came with the respondent entity. The senior manager accepted that the complainant had downtime over the winter so would help out in named facilities. 

The senior manager said that during the pandemic, they kept in touch with their teams via online calls and addressed the effect of the pandemic. No work came out of the calls and people were not obliged to go on these calls. The senior manager outlined that there was a proper process in place, and it was done over time. It would have been clear to the general manager of the consequence of the complete loss of business, and they would be aware of the financial effects. The senior manager described losing the racing festival as a knock-out blow. The senior manager outlined that he had taken over the running of the respondent entity in a holding role, and it might never recover.

The senior manager outlined that the complainant had spoken about working for the respondent in America. The senior manager outlined that no decision had been made at the start of the process regarding redundancy, but the role was at risk as the business had collapsed. This would have been clear to the complainant. The senior manager accepted that the head chef was still in the business, but this was a specialist role which the senior manager could not do. The senior manager said that he could do the complainant’s role but not the head chef’s. The head chef worked at the named sporting facility and his situation was not comparable to the complainant’s.

Evidence of the appeal manager

The appeal manager outlined that they addressed the issues raised by the complainant regarding process. The appeal manager verified that there had been an official process involving a number of meetings and that alternative roles were considered.

The appeal manager said that the business he ran was overnight also badly affected by the pandemic. He made redundancies in these businesses. He outlined that if they knew that clients would return, they kept staff on lay-off. If the future of the business was uncertain, they acted quicker. He said that it depended on the business model and sports and events were one-off contracts. He said that they would also look to the long-term prospects of the business.

Evidence of the HR Manager

The HR Manager outlined that the three roles advanced were not suitable alternatives as they were for less salary. They always gave employees the option. The hospital General Manager role was a suitable alternative as it ran the whole hospital site with a headcount of 150. The complainant went through the first stage, but the role was filled by an external applicant. The role required experience of healthcare and of a strong unionised environment, but the complainant did not have this experience. The role was likely filled in autumn 2020 and it was the only general manager role going at that level.

In respect of the annual leave claim, the HR Manager outlined that the leave year commenced on the 1st October. The complainant had an entitlement to 20 days of annual leave. He had carried over six days and not the 11 he had claimed. The calculation of annual leave was as of the 26th June and there was one month of non-reckonable lay-off. The complainant took 10 days of annual leave from the 11th to the 31st December 2019, as well as one day in March and one day in April. He accrued 14 days in the last leave year. He was also paid for the May and June 2020 public holidays and for lieu days too.

In respect to the appeal outcome of the 23rd June 2020, the respondent said that while there is reference to ‘redundancy’, a redundancy process was still in place. He said that redundancy was the last resort and all their businesses had collapsed except for in healthcare. The only general manager vacancy had been in healthcare at the named location.

Closing

In closing submissions, the respondent outlined that this had been a standalone role. In respect of section 6(3) of the Unfair Dismissals Act, an employee could point to the treatment of other employees and any breach of custom and practice to show that their dismissal was unfair. The claimant must show how comparator employees were also treated differently and to show unfair selection. The complainant had been the only general manager in the respondent entity. The respondent relied on Barton v Newsfast Freight Ltd UD1269/2005 where the EAT held that the employee was not unfairly selected as he was the only Dublin-based van driver and there was no-one else in similar employment. The respondent submitted that there was no one in similar employment to the complainant. The respondent also relied on Cruise v Nugent Manufacturing UD2099/2009 where the employee had not been able to point to any other person in similar employment.

The respondent submitted that the complainant occupied a unique position in the sports entity. He was not in similar employment to any other employee in the respondent. The General Manager role was no longer required in the sports entity and his role was not replaced.

The respondent referred to section 6(7) of the Unfair Dismissals Act and it was submitted that the respondent had acted reasonably. The complainant’s redundancy arose because of the reduction in business following the lockdown. It had adopted a proper and fair process, including engagement with the complainant, the discussion of alternatives, the right to apply for alternative roles and the availability of an appeal. The respondent submitted that it was clear that the need for the complainant’s role had substantially diminished as a result of sports events not proceeding.

The respondent outlined that the passage of time had shown the redundancy decision was correct. The respondent relied on Duggan v Mities Facilities Management UD535/2015 as authority that, should a finding be made of unfair dismissal, any redress should take account of the redundancy lump sum payment already made to the complainant.

At the outset of the hearing, the complainant said that he was happy to accept the facts as portrayed by the respondent. The complainant outlined that the golf tournament had not been cancelled in 2020 but was postponed. The complainant was placed on lay-off on the 26th April 2020 and received the phone call regarding his position on the 8th May 2020.

The complainant said that he was hired into the respondent group to the university role and then in January 2019 to the general manager role. There had been an incident at the university where he had an altercation with a university client staff member, who was inebriated at the time. The university staff member told the complainant that he was going to lose his job. The complainant submitted a grievance, but the university would not deal with it. The respondent offered a way out and were also reluctant to deal with the grievance. The complainant then moved to the new role.

The complainant outlined that 2019 was a successful year and there were some good parts of the business, which they had strengthened. The senior manager had been happy with the complainant’s performance. When lockdown began, they prepared for what might be ahead. Staff were placed on lay-off and there were no redundancies at this time. The complainant took on a new site as this was close to his home and he helped the senior manager at two named non-sports sites. The complainant’s focus was on managing people and he had worked successfully in both education and sports.

The complainant outlined that during the initial phase of the lockdown, he was paid most of his salary and attending work. He, for example, attended the golf course until it closed. He had been diagnosed with skin cancer and had two surgeries. He was on sick leave from the 27th March to the 26th April 2020. He was then placed on lay-off on the 26th April and it was on the 8th May that he was told he was at risk of redundancy. During the lay-off, there were meetings on a Monday and a Friday, and they were expected to check emails.

The complainant said that he had expected the meeting of the 8th May to be a catch up as this is what the senior manager had suggested beforehand. The senior manager outlined that the complainant was at risk of redundancy. The complainant described this as a shock to the system. He was not then in the loop about the golf tournament.

The complainant outlined that it was the lack of process and the lack of clarity in the process that concerned him. He felt undervalued and that this was a tick-box exercise. While the first consultationreferred to ‘suitable alternatives’, there should have been a clear two-stage process, with the first being whether a redundancy situation exists rather than immediately engaging with alternatives.

The complainant outlined that the respondent did not explain why the role was redundant. He was hired into Sports and Entertainment and was expected to take over the respondent entity contract in June 2020. At the consultation meeting, he asked whether a named tourist attraction and a stadium were included in the pool. The complainant asked how the respondent had decided that the role was redundant and what else he could do to prevent the role from being redundant, for example the two sites he had helped the senior manager with. As the respondent had mentioned ‘redeployment’, this suggested that a decision was already taken.

The complainant outlined that the percentage loss of business was only stated for the first time in the recent submission. He had stepped in to manage the launch of a garage business at a named location and was also involved in the two other sites with the senior manager. This was pre-pandemic.

The complainant outlined that he had expected the respondent to be more prepared at the second meeting. He had still not been told that the role was redundant but the first item on the agenda of the meeting was alternative roles. He had asked for details of the losses. He had asked for a plan and his reference to negotiation was to explore alternatives along the lines of the sites he had worked with the senior manager. 

The complainant said that it felt that they would not tell him why his role was redundant. He expected the respondent to provide him with a road map. The complainant said that he did not have the facts. The complainant outlined that the three alternatives were not suitable. The Cork role was interesting but was sold to him in a negative way, i.e. a 33% reduction in pay, no van and a 4am start. There was no meeting half-way on these proposals.

The complainant said that by the third meeting, this was still his proposed redundancy. There were two employees in a named facility and this business closed. One transferred and the other took redundancy. The complainant accepted that the respondent had put the role at risk of redundancy but made no decision that the role was redundant until later that meeting.

By May 2020 the golf tournament stood postponed. The senior manager could not give details of the stadium or the tourist attraction. The minutes made it clear that the complainant could not apply for other jobs. This document was the first time he was told the role and he were redundant. The complainant said that he did not have visibility of the projections but made an input once the projection was issued. He said that there were managers in the stadium and the tourist attraction who were newer than him so LIFO could have been applied.

In the appeal, the complainant said that he wanted to see what the loss was. The golf tournament was still postponed, and he was not told of any discussions in the background. A festival had spoken about hosting eight events, and they eventually held one. This potential had not been looked into.

The complainant said that he had always supported the general manager at the stadium on match days and concerts and he helped him in return. The complainant had sought the financial data but never received it. The complainant asked who would take over his role but there was no plan. The senior manager had said that the complainant was redundant because he had not applied for the other jobs. The complainant said that this was a misinterpretation as the process provided that he had to be redundant before the other jobs could be considered at all.

The complainant outlined that at the time the pandemic started, he obtained Garda clearance to work in hospitals and offered his services to a named facility. He belatedly became aware of the vacant general manager role in healthcare. The appeal letter stated that the respondent made a decision on the role before the employee was told they were at risk. The respondent stated that it based this decision on the closedown of the business and that it did not have to consult on this.

In respect of wages, the complainant said that he was paid sick pay in full between the 27th March and the 26th April 2020. He was paid 70% of his salary between the 27th April and the 29th May 2020. He then received his full notice pay.

In respect of the Organisation of Working Time claim, the complainant outlined that his work was seasonal, and the businesses thrived over the summer. He could be the only person on payroll in the winter. He said that he was entitled to public holidays on the 5th May and the 1st June 2020.

The complainant said that he was placed on lay-off on the 27th April 2020. He had submitted his rosters for all his working time since 2019 including lieu days. He submitted the days he had worked during lay-off. He outlined that he was back on contract once the redundancy consultation commenced. The complainant said that he had crossed the threshold of working 1,365 hours. The respondent had relied on 32-hour weeks to reach their calculation.

In respect of mitigation, the complainant said that he had applied for the healthcare role. He said that he had been new to education and bespoke events until he worked in such roles for the respondent. He was confident managing people and had dealt with unionised staff at two locations. On the 21st August 2020, he was informed that he had not been successful in his application for this role, but this role was later re-advertised. The complainant applied for regional manager roles in named supermarkets but was not successful. There were not many jobs advertised in his industry and he went to set up his own business in painting and decorating on the 9th October 2020. He was trying to grow the business and was not taking a salary. He was on PUP for three weeks, job seekers allowance for two weeks and then in receipt of support from the entreprise scheme.

In cross-examination, the complainant said that his role was in the respondent entity and in Sports and Entertainments. He accepted that his place of work was the respondent entity. He was aware that the racing festival was then cancelled but the golf tournament was postponed. While the complainant had visibility of the business and could input on the projections, he could not see what the loss was. It was unclear how bad the pandemic would be, and they would be back to events by September 2020. There was hope of a three-day racing event and this was why he was asking for the respondent projections.

In respect of a roadmap, the complainant had asked who was taking over his roles and it was at the third meeting that the senior manager said he was taking over. The complainant had wanted input into a roadmap. He said that the head chef was on the same salary and is still in the business. This head chef was brought in and out to work while on lay-off.

The complainant said that an inference could be drawn from the time taken on the redundancy process as well as being singled out after raising the grievance in 2017. The complainant said that he expected the company to stand up for him. The complainant said that he took the role of an employee who was made redundant, and he moved from an Account Manager role. The complainant said that he did not feel supported by the respondent after this. He said that when the opportunity arose because of the pandemic, it was easy to move him on. He said that how he was treated in the process indicated that his face did not fit.

The complainant said that he was looking forward to the role in the respondent entity. He had a working relationship with the senior manager, but the senior manager had raised personal issues in the review (shaving) and had not taken the redundancy seriously.

It was put to the complainant that he had been afforded a full three-stage process and an appeal hearing which he said he was happy with except for the outcome. It was put to the complainant that the business had still not picked up and he knew the projections. The complainant disagreed that he knew the pandemic-related projected losses. He kept asking whether a decision had been made regarding his redundancy and how this was made.

In reply to the senior manager, the complainant said that the respondent was contradictory regarding whether a decision had been made in respect of the redundancy. The question was whether it was clear that the role was gone and if so why. While he had looked at relocating to the US with the respondent, they had not facilitated this, and he had made all the arrangements himself.

The complainant said that he was never informed of how the respondent had calculated his annual leave entitlement. As of the 1st October 2019, he had 11 days of annual leave and 12 days owed in lieu. He had taken some of these. He worked 1,403 hours in that leave year and any leave he took was lieu days or days carried over. He agreed that he took leave from the 11th December to the 31st December 2019, but had worked the 14, 15th and 16th December. He worked one day in March and one day in April. He acquired 12 lieu days during the season, and this was agreed with the respondent. He said that all leave he took was carried over annual leave or lieu accrued in that time.

In closing, the complainant said that he asked for information, and this was not forthcoming. It was not clear why his role was gone. He made it clear that all he asked for was a fair process and for the basis of the decision to make the role redundant. He wanted to know why he was selected.

The complainant commenced employment for the respondent on the 14th August 2017, and this came to an end on the 26th June 2020. The respondent provides services to clients in different sectors of the economy. The complainant initially worked at a named university, a role which took an unhappy turn. The complainant submitted a grievance in relation to the manager of the client site, raising serious issues. The complainant applied for the role in the sports entity and began this General Manager role on the 21st January 2019. The contracts for both roles required the complainant to be flexible in the nature of his role and the location of work.

The sports entity is a specialist catering provider at large sporting events. The review forms indicate that the complainant was adapting well to the role. The complainant could have 100 staff reporting to him during these high-profile events. There cannot be any doubt that the Covid-19 pandemic had a significant impact on large sporting events, although there was still uncertainty in mid-2020.

CA-00031923-001

This is a complaint pursuant to the Unfair Dismissals Act.

Statutory background

Section 6(1) of the Unfair Dismissals Act provides that a dismissal shall be deemed unfair, unless there are substantial grounds justifying the dismissal.

Section 6(2) sets out circumstances where a dismissal will be unfair if the dismissal was wholly or mainly due to those circumstances.

Section 6(3) provides as follows in respect of a dismissal made on grounds of redundancy:

‘(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.’

There is no allegation in this case that any of the grounds in section 6(2) applied (dismissal for trade union activity etc). The question will be whether there was a contravention of any procedure, or custom and practice.

Section 6(4) provides that a dismissal will not to be an unfair dismissal if it was wholly or mainly due to the ‘redundancy of the employee’. Section 6(6) makes it clear that the burden of proof in section 6(4) is on the employer.

Section 6(7) allows for regard to be had to the reasonableness of the employer’s conduct and the employer’s adherence to any rules or Code of Practice. There is no specific Code of Practice addressing redundancies.

Timeline of events

The events leading up to the ending of the complainant’s employment arose in the context of the Covid-19 pandemic. The timeline is important.

Of course, the onset of the Covid-19 pandemic caused events to be cancelled and businesses to close across the country. Several very significant Government interventions were put in place to address this unprecedented situation, including wage subsidy schemes. The respondent availed of the Temporary Wage Subsidy Scheme, a scheme enacted to help ‘adversely affected’ businesses.

Many of the restrictions came into place on the 27th March 2020. As it happens, this was the day the complainant began a period of sick leave as he received cancer treatment. He was on sick leave from the 27th March to the 26th April 2020. The complainant was then placed on lay-off and designated per the Temporary Wage Subsidy Scheme. He was paid most of his salary via the scheme.

After the period of sick leave ceased, a phone call was placed with the complainant on the 8th May 2020. He was told that his redundancy was under consideration. He received written notice of this on the same day. The first consultation meeting took place on the 15th May 2020. The second meeting took place on the 22nd May 2020 and the third ‘final’ meeting took place on the 29th May 2020. The notice of redundancy was issued on the 29th May 2020.

The complainant appealed on the 4th June 2020 and the appeal hearing took place on the 10th June 2020. The appeal outcome was issued on the 23rd June 2020.

The meetings took place online because of the pandemic. The complainant was on lay-off and the respondent availed of the wage subsidy scheme. It is unclear why the redundancy process had to commence within two weeks of the complainant coming off sick leave and then completed within four weeks. As noted in the evidence, this was a time of great uncertainty, so a central question in this case is whether this urgency was reasonable in all the circumstances, which led to the ending of the complainant’s employment.

‘Similar employment’?

The complainant had moved to the sports entity and this part of the respondent business was significantly affected by the lockdown in 2020. The respondent asserts that he was in a unique position in the organisation.

As noted above, the complainant had been an Account Manager and then a General Manager, both roles where he was required to be flexible in terms of location of work and the role he performed. He moved from the university role to the sports role. He outlined that he also worked other roles, for example at a stadium, another university and garages.

I find that the complainant’s role was not unique to the sports and entertainment entity. He was employed by the respondent and could have been assigned to any part of the business. Having reviewed the evidence, I find that the complainant must be viewed as an employee who had a potential role across the respondent businesses. He was not a sports and entertainment specialist, although had the skills to manage large scale high profile events. The complainant had many other strings to his bow, for example in universities but also had skills applicable to areas like healthcare. Because of the pandemic, healthcare was going to be a growing area in the business. While the complainant was not successful in applying for one particular healthcare role, there was likely to be other roles available. Why dismiss the complainant when this potential existed.

The evidence showed that the complainant’s colleague, a chef, was called in from lay-off to work certain roles. This facility was not extended to the complainant. Of course, the complainant is not a chef but has people management and organisational skills. These skills could have been availed of across the respondent businesses when necessary. It would have been straightforward to keep the complainant on lay-off but to avail of his skills when these opportunities arose.

The decision to dismiss

There was no respondent written procedure regarding when redundancies would be implemented. The evidence suggested that the respondent would first decide whether redundancies were necessary and then consult with the employees in question. It looked to the prospects of the particular business. Ordinarily, a redundancy process would take four weeks. I note that this dismissal took place in times that were not ordinary, but in the extraordinary times of the uncertainty wrought by the pandemic.

The complainant made the point that there was no financial loss for the respondent to keep him on lay-off. He would be available to work when required. The times were uncertain and unprecedented, so why not wait to see if an appropriate vacancy arose, for example in healthcare. The complainant had performed well and while his part of the business was particularly affected by the pandemic, why not keep him on the books to avail of the opportunities that might present themselves, especially in healthcare.

It was artificial to assess the availability of alternatives in May and June 2020. This was during the first lockdown and many people were on lay-off. Employers delayed hiring people. There was little real prospect of the complainant identifying a suitable alternative in this short period. Given the extraordinary circumstances, the respondent ought to have assessed alternatives over a longer period.

It is also relevant that the complainant had discussed his future career intentions with the respondent. One was to study chartered accountancy and, significantly, the complainant had taken the initiative to explore roles with the respondent in the United States. These may have been opportunities for the complainant to explore, even when on lay-off. Dismissal ended his relationship with the respondent.

Overall, I find that the complainant’s dismissal was an unfair dismissal. First, there was the inaccurate designation of the complainant as being ‘unique’ when he was contractually obliged to be flexible in other roles and other locations of work. He had already worked for the respondent in other roles. Second, there was the short time period to complete the redundancy process. This did not reflect the extraordinary circumstances of the time, including the inevitable lack of alternatives. There were potentially many growing parts of the business, and the complainant should have been treated in the same way as the chef, i.e. filling in for appropriate short-term vacancies. Third, this was to no cost to the respondent. The complainant was on lay-off and in receipt of the wage subsidy. The wage subsidy was an extraordinary intervention by Government, reflecting extraordinary times. The employer can be expected to follow suit and treat lay-off and redundancy in a way to reflect the extraordinary times.

I, therefore, find that the complainant was unfairly dismissed when he was dismissed on the 29th May 2020. This is because the dismissal was premature, in circumstances where the complainant had only recently been put on lay-off and was not costing the respondent anything. He could have filled in on shorter-term roles, notably in healthcare. This was a time of uncertainty but there was the potential for new roles across the respondent business. These roles would constitute similar employment. It was not reasonable for the respondent to complete the redundancy process in quick time, when alternatives would inevitably be light on the ground. The respondent could have easily delayed the redundancy process, in accordance with the extraordinary times. The dismissal was, therefore, an unfair dismissal.

Redress

Section 7 of the Unfair Dismissals Act sets out redress where the dismissal is deemed to be unfair. Where an award of compensation is to be awarded, it should be just and equitable. Regard can be had to the conduct, acts and omissions of the parties as well as the employee’s mitigation. Recall that the complainant was paid €5,000 per month.

Financial loss is defined as ‘in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation’.

Section 19 of the Unfair Dismissals Act provides that an unfairly dismissed employee can be asked to repay a redundancy lump sum paid out where they are reinstated or re-engaged. There is no equivalent provision where an award of compensation is made per section 7(1)(c) of the Act.

Redress must be just and equitable. In this case, I note that the complainant has received a redundancy lump sum payment. I, therefore, do not make an award for any loss or diminution of an entitlement under the Redundancy Payments Act. I do, however, make an award for financial loss attributable to the dismissal, i.e. after the dismissal. In assessing redress, I note the complainant’s work to build a new business. While the complainant applied for managerial roles, he concentrated his efforts on developing the business. I also note the great uncertainty in the workplace at this time and I accept that it was harder to find employment because of the pandemic.

Taking the above factors into account, I award redress of €45,000 as just and equitable compensation for the unfair dismissal.

CA-00031923-002

This is a complaint pursuant to the Organisation of Working Time Act in respect of annual leave.

The respondent outlined that the complainant had carried over six days of annual leave into the 2019-2020 leave year. He had an entitlement to 20 days of annual leave. The calculation of annual leave took place on the 26th June 2020 and took into account one month of non-reckonable lay-off. The complainant took 10 days of annual leave from the 11th to the 31st December 2019, as well as one day in March and one day in April. He accrued 14 days in the last leave year.

The complainant outlined that all the leave he took in the final leave year was either carried over annual leave or lieu days. He had not availed of any of his leave entitlement accrued in the 2019-2020 leave year. In submissions, the complainant had outlined that he had worked sufficient hours in the leave year to have an entitlement for 20 days. The complainant also indicated that he worked the 14, 15th and 16th December 2019. He worked one day in March and one day in April 2020.

The complainant accrued an entitlement to annual leave from the 1st October 2019 to the 26th June 2020, save for the one month of lay-off (27th April to the 26th June 2020). Accordingly, the complainant acquired an entitlement to 11.5 days of annual leave in the leave year. There was a dispute whether the complainant had carried over 5 or 11 days into the leave year. There is no contemporaneous documentation, and the complainant modified the basis of this aspect of the claim (from having an entitlement to the full 20 days to having carried over annual leave from the previous year). I find that the complainant took 12 days of annual leave, and this included the 5 days carried over. He is, therefore, due 5 days of annual leave, which is €821.

CA-00031923-001

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant redress of €45,000.

CA-00031923-002

I decide that the complainant is due five days of annual leave, and the respondent shall pay to the complainant €821.

Unfair Dismissals Act / redundancy / similar employment / Covid-19 pandemic

Organisation of Working Time Act / annual leave