Complainant

Respondent

Parties

Aidan  Brady

Kanes Autos Limited

Representatives

Thomas K. Madden & Associates Solicitors

 Flynn & McMorrow Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045555-001

05/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045555-002

05/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045555-003

05/08/2021

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

CA-00045555-004

05/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045555-005

05/08/2021

CA 00045555-001:  this complaint was withdrawn at the hearing.

CA 00045555-002:  this complaint was withdrawn at the hearing.

CA 00045555-003:  this complaint was withdrawn at the hearing.

CA 00045555-004 Redundancy claim.

The complainant is a mechanic. He started working as a Department of Environment CRV tester at the Respondents testing Centre on 15 January 2006. He worked on a full-time basis. He explained that it was a highly pressurised and responsible job, but that he liked the job.

He submitted that he had an exemplary attendance record with no sick leave incurred in the years he worked for the Respondent. The Respondent did not have the sick pay policy.

The Complainant carried out tests on light commercial vehicles. He estimated that he did 10 tests per day on his own. He had his own test lane allocated to him. He explained that bookings were done via the Respondent’s reception department.

The Complainant gave evidence that on the 10 March 2020 he took two weeks holidays to the Canary Islands in Spain. His return date would have been 24 March 2020. He returned early to Ireland on 17 March 2020 for a funeral. At the time the Canary Islands were not a restricted area due to the Covid 19 pandemic.

Following his return from holidays, he received a text message from the Respondents Managing Director on the 18 March 2020 requesting him to take a further two weeks annual leave due to Covid and to isolate. He was advised that this was due to concerns raised by other employees.

The Complainant telephoned two of his co-workers who advised him they hadn't heard of any concerns about his travelling abroad.

On 29 March 2020 all test centres were closed due to Covid 19.

On 21 April 2020 the Complainant had elective heart surgery. He recovered very well and was able to return to work after six weeks.

During his absence from work, he did not receive a Pandemic Unemployment Payment / PUP payment as he did not qualify for it. He was 73 years of age at the date of the hearing and was in receipt of the State pension. He advised that the lack of the weekly wage was very stressful for him as he had financial commitments. Prior to Covid he was earning €650 gross per week on top of his state pension.

On 15 May 2020, the Complainant received a letter from the Respondent advising him that he was being laid off temporarily due to Covid 19.

On 22 June 2020 the Complainant called to the office of the Respondent and spoke with the Managing Director. He asked her when he could return to work. Her husband was there at the time. He advised her that he would work whatever days were available.

The Complainant gave evidence that his preference was to stay working for the Respondent. He lived 5 km away from the testing centre and it took 7 – 8 minutes for him to travel to work. His evidence was he knew his co-workers and he had no desire to leave the workplace.

On 5 August 2020 he requested the Respondent to "put him in for refresher training". This is a requirement for his licence to test. He understood that he would be put forward for training and was looking forward to going back to work.

On 8 August 2020 the Complainant received a letter from the Respondent's solicitors. The letter was headed TERMINATION OF EMPLOYMENT. The letter went on to state that the Respondent was not in a position to bring the Complainant back to work due to the Covid 19 Pandemic. It also set out that the Complainant was in the "at risk category" and that they would keep the matter under review.

The Complainant was shocked to receive this letter. He submitted there was no basis for it and that the Respondent had told him he could return to work on a three-day week. He submitted that no medical evidence was requested from his GP our consultant in relation to his return to work or fitness to work. At the hearing he asked, "how would they know he was at risk"? He submitted the Respondent had not carried out a risk assessment. He explained that the Respondent had no policies or procedures on dealing with staff during this period.

In August 2020, the Complainant sought alternative employment having been informed that his employment was terminated.

The Complainant commenced working with another test centre on the 7 September 2020. This test centre is 15 km away from his home.

The Complainant explained that he works four days a week in his new employment. He worked five days a week with the Respondent. He said he had no intention of retiring and made reference to having no other form of income. He gave evidence that two other employees had their employment ended with the Respondent around the same time.

On his complaint form he identified the date of dismissal of 8 August 2020. At the hearing he submitted that on 25 November 2020 he was told his position no longer exists.

Under cross examination he confirmed that he left hospital four days after his operation. It was put to him that everybody over 70 years of age was advised to cocoon (meaning not to go outside).

As regards his testing certificate, there was much dispute about this at the hearing. The Complainant's evidence was that the certificate was transferred to his new employment one or two weeks after he started in September 2020. The Respondent's solicitor put to him that the licence had transferred in early July 2020 to the new employer. The Complainant disputed this and said he didn't know how it was transferred electronically. He identified a member of the Respondents reception staff that he approached in the middle of September 2020 seeking his physical testing certificate. He said he needed to have this on public display in his new employment.

The Complainant said that if he was asked for medical evidence of his fitness to return to work, he would have produced it willingly.

The Complainant disputed that there was serious disquiet from other employees as to his holidays in the Canary Islands or in Donegal.

He disputed that at the meeting of the 5 August 2020 he said he had no interest in part-time work. His position was that he wanted to work.

The Complainant filed his complaint with the Workplace Relations Commission on the 5 August 2021.

The Complainant's representative submitted that the restriction introduced during the Covid pandemic on claiming redundancy did not apply to the facts of this case. He submitted that the suspended redundancy regulations were not pleaded by the defence. He set out that the regulations were not a blanket prohibition on bringing a redundancy claim.

The General manager gave evidence. She explained how the business was a small garage with a testing centre. The business closed in March 2020 due to the Covid restrictions. In mid May 2020, the Respondent received notification that it could commence testing on a limited capacity basis. Her husband started testing on his own during this period.

At this time there was much uncertainty as to how Covid was transmitted. The Respondent explained that its other staff were not happy for the Complainant to return to work having been abroad in the Canary Islands. She texted the Complainant and asked him to isolate for two weeks. He did not respond to her.

When the business disclosed, she sent all staff the link as to how to claim a Covid payment. The Respondent did not operate the EWSS scheme.

The General Manager referred me to her letter of 15 May 2020. The letter informed the Complainant that the Respondent had decided to temporarily lay him off until a vaccine was found.

The General manager gave evidence that they had to carry out a risk assessment for the Road Safety Authority before they opened, and the Health and Safety Authority also carried out checks before they reopened. She was aware that the Complainant was over 70 years of age and that he had a heart operation. They took the view that he was in a vulnerable category.

The General manager explained that she had a conversation in June 2020 with the Complainant. During the conversation he told her that he had secured a job with a competitor testing centre. He also told her that he was bringing his customers with him to the alternative testing centre. 

She submitted that she offered him a part-time role for when they were in a position to let him back to work but he declined this. They Complainant said to her "I am going there if you don't take me back". She said she was happy to take him back to work “when there was no risk”.

She explained that initially two testers returned to the workplace on a part-time basis. So did the receptionists in the office. The Respondent was only in a position to offer part-time work at that time due to the extension by the Department of Environment of existing testing certificates. She explained that there was no demand for testing to be carried out.

The witness explained that the Complainant's testing license was due for renewal in October 2020. It was her view that he commenced work with the other testing centre in July 2020 and left employment with them at that time. She said she did not want to see him go to that rival testing centre. She gave evidence that she considered him a valued employee and was happy to take him back. However, she said he left his employment of his own free will. He transferred his registration on the Road Safety Authority online portal.

Post the hearing, the Respondent provided an email from the Road Safety Authority.  This information was requested by me at the hearing.  It confirmed

“We were requested by the [other testing centre] to associate Aidan Brady as a CRV tester on the 29/7/2020” .

The Applicable Law

Section 9 of the Redundancy Payments Acts, 1967 provides as follows:

9. Dismissal by employer

(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if–

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

[(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or]

(c) the employee terminates the contract under which he is employed by the employer [ …] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

Section 12 of the Act provides for the right to redundancy payment by reason of lay-off or short time.  Section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (in operation from 13th March 2020 until 30th September 2021) inserted 12A into the Redundancy Payments Act 1967 providing: “Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects or measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19”.  This meant that employees in the Complainant’s position on lay-off or short-time due to Government measures required to limit the spread of Covid-19 could not seek redundancy for the duration of the emergency period.

To quote the Adjudication Officer in ADJ-00032718 “Employees including the Complainant who would normally have been eligible for redundancy were unable to avail of this process whilst this emergency measure was in place.  This measure was aimed at easing the position of employers and maintaining the employment relationship such that employers were not forced to pay out statutory redundancy during an emergency situation when they were unable to trade normally through no fault of their own.  However, it did not give a ‘carte blanche’ to leave employees in a lay-off limbo without proper communication as to their prospects of returning to work.  In normal times a strict statutory time-table for communications exists to give employees some certainty as to the status of their employment and prospects of return.” 

The complainant in this case submits that his complaint is not related to lay off or short time but termination of employment by the Respondent.   

The Respondent submitted that the Appellant was never dismissed by the Respondent and that he voluntarily resigned.

I have reviewed the evidence presented to me both orally and in writing.

Based on the information provided to me, I accept that the Respondent put the Complainant on lay off on the 26 March 2022 due to the Covid -19 Pandemic. 

I accept that the parties met in June 2020.  At that meeting the Respondent made an offer of a three-day week to the Complainant.  The Respondent's evidence was that this offer was for when the Complainant could return to work in terms of the Covid restrictions.

I accept that the Complainant was not happy with being on lay off or this offer and that he was at a financial loss due to being on lay off. 

Despite the written submission of the Complainant that this meeting took place on the 22 June 2020, at the hearing the Complainant submitted this meeting took place on the 5 August 2020.  I find the Respondents evidence regarding what took place on the meeting in June 2020 to be more credible.   

I accept that the Complainant was entitled to feel aggrieved at the treatment from the Respondent in terms of being on lay off limbo.  Three other of the Respondents testers had returned to the workplace albeit on a part time basis.  He raised a grievance with the Respondent on the 22 June 2020.  He indicated that he would leave the employment and go work for the competitor testing centre if he was not taken off lay off “there and then”.  I accept that there was an offer of conditional return to part time work made to the Complainant at this meeting.     

I find that the Complainant’s CRV licence transferred to the other testing centre at the end of July 2022.  The Complainant started working for the other testing centre and has continued in this role.  No evidence was presented to me as to why the CRV licence transferred in July 2020.

The Complainant may have been adopting a ‘wait and see approach’ to whether he would be taken off lay off by the Respondent.  I accept that a meeting did take place on the 5 August 2020 and this meeting triggered the Respondents engagement on the 8 August 2020.

In the Complainant’s solicitors’ letter of the 16 November 2020, it was asserted that the Complainants employment has been terminated.  To be fair to the Complainant, the level of communication and engagement from the Respondent was very poor during this time of lay off.  Had the lay off not been during Covid, a different set of rules would have applied.  However, this complaint is seeking a redundancy payment and is subject to the legislation in place at the time.

I have to address the Respondent’s letter of the 25 November 2020 which makes reference to his position no longer existing. 

Section 7(2) is a very broad definition of redundancy and confers a redundancy situation on a wide variety of terminations of employment.  A “redundancy” situation is defined as occurring “wholly or mainly” from one of the following situations:

(a) Where an employer has ceased, or intends to cease, to carry on the business for the purposes for 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) Where the requirements of that business for an employee 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) Where the 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) Where an employer has decided that the work for which the employee has 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) Where an employer has decided that the work for which the employee has 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 set out that the letter of the 25 November 2020 was written in the context of the Complainant having moved to a new employer and transferring his RSA Licence in July 2020.

The wording of the letter set out

"Our clients complied with all return to work protocols including prioritising staff safety and indeed your clients safety. His job with our clients was left open and it was explained to him that as soon as the Pandemic was over matters would be reassessed. He chose to go to a new employer and he transferred his RSA licence as a tester to his new employer and contacted our clients customers to move with him to our clients competitor. At no stage was he told by our clients that he wasn't returning. Furthermore we can confirm that your client’s position has never been advertised or has anyone been hired in his place and the position no longer exists.”

An employee who resigns is generally not entitled to a redundancy payment. The reason for this is that the job continues to exist after the employee leaves.

In this case the Complainant was employed for 14 years with the Respondent.  The Respondent placed him on lay off due to the Covid pandemic.  The Respondent then decided (without consulting with him) to return his colleagues to work on a part time basis.  While I can identify the Respondent’s reasons for doing this, they should have engaged with and assessed the Complainant to make an informed decision.  I accept that the Complainant raised a grievance with the Respondent in June 2020 and he set out his options to the Respondent.  The Respondent retained him on lay off.  The Respondent disputed that it dismissed the Complainant but while claiming that he resigned, it did indicate that his position no longer exited. 

On the balance of probabilities, in this unusual case, I find that the Complainant was dismissed in accordance with Section 9(1)(c) in that he resigned due to the conduct of the Respondent and the Respondent has accepted that his position no longer exists. 

CA 00045555-005:  Notice is not due to the Complainant when the Complainant has resigned from his employment. 

CA 00045555-001:  this complaint was withdrawn at the hearing

CA 00045555-002:  this complaint was withdrawn at the hearing

CA 00045555-003:  this complaint was withdrawn at the hearing

CA 00045555-004:  this complaint is well founded

I find that the Complainant is entitled to a Redundancy payment on the following basis:

Start date: 15 January 2006

End date:  25 November 2020

Total lay-off period due to COVID-19:  13 March 2020 to 25 November 2020

Gross Salary cap:  €600 per week

CA 00045555-005:  this complaint is not well founded

Redundancy.  Evidence of termination of employment.  Definition of dismissal.  Section 9 Redundancy Payment Act 1967