Complainant

Respondent

Parties

Sean Rahill

Agrigear Limited

Representatives

Sinead Fitzpatrick, Kennedy Fitzgerald LLP Solicitors

 Mr Don Garry, Solicitor

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-00041390-001

03/12/2020

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

CA-00041390-002

03/12/2020

The complainant, Mr Sean Rahill, worked for the respondent from September 2018 until June 2020, when, following his return to work post temporary layoff due to the Covid lockdown his role was terminated by the company, resulting in his dismissal.  Evidence was given under oath/affirmation by the complainant and Mr John McGowan, General Manager, Agrigear and both parties were afforded the opportunity to cross examine.

The Complainant was employed by the Respondent from the 17th of September 2018 to the 5th of June 2020. He held the position of Operations Manager. His day-to-day role mainly involved managing and working with the team leaders/supervisors in the areas of car tyre fitting, agri tyre fitting, wheel manufacturing/refurbishment and the mechanics in the garage. When the Covid lockdown was imposed nationwide in March 2020, the Complainant was placed on temporary lay-off from the 23rd of March until the 2nd of June 2020. When he returned to work on the 2nd of June 2020, he discovered that his office had been reassigned to a colleague and he no longer had a telephone line assigned to him. The Complainant set up a workstation and commenced his work.

On Friday, the 5th of June 2020 the Complainant was called to the General Manager’s office for a meeting. Present at the meeting were Mr John McGauran, General Manager and Mrs Rose Clarke, Director. The Complainant was advised that he was being made redundant due to Covid restructuring. Within a week or thereabouts of the Complainant’s dismissal, the Respondent sought to hire a replacement for the Complainant’s position of Operations Manager. The Respondent also advertised other vacancies in the company for which the Complainant was qualified, including that of Key Account Manager, with an engineering background, on significantly reduced salaries as compared to the Complainant.

If the Respondent is to establish that the Applicant’s dismissal constituted a genuine redundancy, it must establish, that for one or more reasons not connected with the Applicant, he was dismissed wholly or mainly on the basis of one of the following grounds:

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 employers 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 henceforth be done in a different manner for which the employee is not sufficiently qualified or trained; or

e) the employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

The Respondent failed to satisfy any of the above requirements.

The Respondent contends that Complainant’s role became redundant due to reorganisation by reason of the pandemic. However, the Respondent was designated an essential service and apart from a brief period of approximately two weeks at the outset of the first lockdown in March 2020, the Respondent resumed its operation at a very similar level as prior to the pandemic. It is contended there was no reorganisation as alleged, and the Complainant’s alleged redundancy was a sham. The Complainant contends that the pandemic was used as an excuse to dismiss the Complainant and to hire a replacement on a significantly reduced salary.

The Respondent failed to consult with the Complainant at all, failed to notify him that redundancies were being considered and that he was being considered for same. The Respondent had no discussions whatsoever with the Complainant regarding redundancy or dismissal, other than to inform him that he was being made redundant with immediate effect. It is submitted that this failure renders the dismissal unfair - Mulvihill .v. Castlebar Social Services Ltd3, O’Driscoll .v. Siebel Systems  Emea Ltd  are relied upon.

The Complainant was not advised as to the selection criteria being applied in relation to the purported redundancy nor was he advised as the procedures being adopted by the Respondent in selecting employees for redundancy.  The Complainant was denied an opportunity to make representations on his behalf, to propose alternatives to redundancy and to raise the issue of redeployment. The Respondent did not attempt to find alternative employment for the complainant, nor did it consider alternatives other than redundancy, such as redeployment, pay cuts or reduced hours. Indeed, the Respondent sought to hire a replacement for the Complainant within weeks of his dismissal and further advertised other jobs for which the Complainant was eminently qualified. It is submitted that the Respondent cannot argue that a genuine redundancy situation exists in such circumstances.

The Respondent failed to adopt any procedures or adhere to any policies whatsoever in dismissing the Complainant, a situation compounded by the failure of the Respondent to provide the Complainant with his mains terms and conditions in writing throughout the entirety of his employment.

Following the imposition of lock down restrictions and the negative impact on the company’s business Agrigear were obliged to lay off 34 employees on 30th March 2020.  Selections for layoffs were based solely on the needs of the business.  The complainant informed the company on 21st May 2020 that he could not return to work due to family reasons.  Following his return to  work the complainant was informed that he no longer had tenure with the company due to the impact of Covid.  On 8th June the complainant requested a reference which was duly provided to him.  He was informed in writing that he did not qualify for a redundancy payment.  However he was paid additional salary to the end of June 2020.

The Complainant signed a contract of employment on 17th September 2018.

CA-00041390-001  Unfair Dismissal

The respondent has argued that, as the complainant was not entitled to a redundancy payment under the Act, a redundancy did not occur and therefore the procedures generally applying to redundancy did not apply.  This is a flawed understanding of the situation.  The complainant is still entitled to the fair procedures envisaged under the Act.  The Complainant was not advised as to the selection criteria being applied by the Respondent in selecting employees for redundancy.  The Complainant was denied an opportunity to make representations on his behalf, to propose alternatives to redundancy and to raise the issue of redeployment. The Respondent did not attempt to find alternative employment for the complainant, nor did it consider alternatives other than redundancy, such as redeployment, pay cuts or reduced hours.

The respondent has argued that the complainant did not claim unfair dismissal in his complaint submitted to the WRC.   While the complaint submission ticks the box of redundancy, it is clear from the narrative within the complaint that the complainant believes himself to have been unfairly dismissed.  In County Louth VEC v Equality Tribunal and Brannigan,  McGovern J. said that form EE1, a non statutory form, was only intended to set out, in broad outline, the nature of the complaint. Consequently, it was permissible to amend a claim set out therein so long as the general nature of the complaint remains the same. In terms of the causes of actions not selected on the complaint form, a lenient approach per Louth VEC continues. This acknowledges that complaints forms are not pleadings within the traditional sense. If a fact is referred to in the written submissions which correlates with a cause of action not selected on the complaint form and the respondent has been afforded an opportunity to deal with this in written submissions, it may be allowed to proceed at the hearing if it is referred within the written submission. I therefore may consider this complaint under the Unfair Dismissals Act.

Section 6 (4) of the Unfair Dismissals Act details fair grounds for dismissal as follows;

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The respondent has argued that the complainant was not made redundant.  The respondent has not advanced any other of the ‘fair’ grounds for dismissal as applying to the complainant.  The respondent has therefore failed to discharge the burden of proof on him to show that the dismissal was fair and therefore the complainant was unfairly dismissed. In determining the appropriate compensation I have considered the losses accrued by the complainant in the two years following his dismissal, which I estimate to be €37,500 and that this sum  is just and equitable having regard to all the circumstances.

CA-00041390-002  Terms of Employment

The complainant alleges he did not receive a copy of his terms of employment as required under the Terms of Employment (Information) Act, 1994.  The respondent argues that he gave the complainant a copy of the Employee Handbook in which these terms were contained.  An acknowledgement of receipt of this handbook was signed by the Complainant and therefore I am satisfied that the Act was not contravened.

CA-00041390-001  The complainant was unfairly dismissed and I order the respondent to pay him the sum of €37,500 in compensation.

CA-00041390-002   The Act was not contravened.

Unfair Dismissals. Redundancy procedural requirements.  Terms and conditions.