Complainant

Respondent

Parties

Kevin  O'Connor

Radleys IT Limited

Representatives

  Self-Represented

 No Appearance

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-00046087-001

10/09/2021

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

CA-00046536-001

05/10/2021

I conducted two remote hearings in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the parties proceeded in the knowledge that decisions issuing from the WRC would disclose their identities.

The Complaint Form was received on 10 September 2021 for an unfair dismissal claim with a second Complaint Form received on 5 October 2021 with a pay claim.

Having waited a reasonable period time, there was no appearance by the Respondent at either of the two hearings. However, on the first date Charlotte Conway who described herself as John Cashell’s Private Secretary, appeared solely to take notes. Ms. Conway was given two separate occasions to speak to Mr. Cashell during the hearing and give him an opportunity to attend. Ms. Conway explained that “he had a prior commitment, and she was instructed to log on to take notes”. There was further contact between Mr. John Cashell Senior, Mr. John Cashell Junior and the WRC on file. Consequently, I am satisfied that the Respondent was on notice of hearing and proceeded with the hearing.

The Complainant swore an affirmation.

The Complainant submitted WhatsApp messages and the emails exchanged between him and the Respondent.

The Complainant, a manager with the Respondent, gave evidence that he worked a minimum of 40 hours per week and received a net sum of €440 into this bank account per week. He was unable to give a gross figure as he only received 3-4 payslip during his time working with the Respondent but believed it was €480. He commenced employment on 25 November 2011, received his notice on 24 May 2021 with his employment ending on 24 May 2021.

CA-00046087-001 - Unfair Dismissal

The Complainant explained that it was a family run business and he received instructions from John Cashell Senior and John Cashell Junior. It was his evidence that Mr Cashell Senior was onsite in the shop while Mr Cashell Junior was only in store approximately once a month but would be in touch by phone. He stated he was always of the belief that both men owned and ran the business.

In January 2021 the shop was closed due to the ongoing Covid19 pandemic. By text message dated 9 May 2021, Mr Cashell Junior contacted the Complainant to ask if he was available “to reopen tomorrow” but as Complainant had broken his leg he was unable to attend. After this the Complainant was involving in seeking cover for his position while he was unable to work, and he continued to operate the Respondent’s social media. On 24 May 2021, Mr Cashell Junior rang the Respondent, and they had an approximately 7-minute phone call. During the call the Complainant was advised by Mr Cahell Junior that the was shutting the shop, but he would look after the Complainant and would be in touch the next day. The Complainant described feeling shocked but not surprised as this conversation. On 26 May 2021, Mr Cashell Junior sent him a text message stating he was going to go ahead with “what we chatted about, so unfortunately this would mean reducing staff. I’m just giving heads up to ensure Redundancy paid. I’ll send you an email about it.”

There was a brief conversation and two text messages between the parties about the possibility of leasing the business, but the Complainant did not move forward with that. From May to July 2021 there was messages exchanged around the topic of redundancy payment, annual leave and notice period. On 15 July 2021 the Complainant received evidence in the form of an invoice of his statutory redundancy payment and confirmed he received it in or around that time. There was no breakdown of how the payment was calculated.  The “Company contact” is noted as Johnny Cashell which was John Cashell Jr as confirmed by the Complainant.

The Complainant gave evidence that the Respondent continues to trade.

It was Complainant’s evidence that he was unfairly dismissed without reason.

The Complainant gave evidence that he was fit to return to work in at the end of September 2021 and obtained alternative employment on 12 October 2021. He earned €12.50 per hour initially which was subsequently increased in August 2022 to €14.00 per hour working 40 hours per week.

CA-00046536-001 - Pay

The Complainant submitted evidence that he sought payment for his annual leave entitlement at the end of this employment in the sum of €1,440, notice period of €1,920 and a week worked in hand of €480 which should have been received on 19 June 2021. The Complainant gave evidence that he was unable to take his full annual leave allowance in the previous year due to the demands of the business and therefore was due three weeks annual leave payment upon cessation of his employment.

The Complainant sought payment via text message to Mr John Cashell Junior on 28 June 2021, 3 July 2021, 10 July 2021 and 15 July 2021. It was the Complainant’s evidence that Mr Cashell Junior advised him “In regard to notice pay, I’m trying to liase with John to bring payroll up to date and check and on top of that trying collect monies outstanding. Bear with me on this”. On 12 and 20 August he sought an update from Mr Cashell Junior with no response. On 24 and 30 August 2021 he followed up with Mr John Cashell Senior with no response. The Complainant presented evidence of emails sent to Mr Cashell Junior of 31 August 2021 to an address linked to the Respondent and his other business with a “Message blocked” notification. 

There was no appearance by the Respondent.

CA-00046087-001 - Unfair Dismissal

This is a complaint pursuant to the Unfair Dismissals Act 1977. The Complainant’s employment ended on grounds of redundancy. The Complainant was in receipt of the pandemic unemployment payment from January 2021 as the Respondent stop was closed due to the Covid19 pandemic. It did not reopen until May 2021 at which time the Complainant was unable to attend the stop and work full time due to an injury. On 24 May 2021 he received notice of his redundancy from the Respondent. I find this to be the date of dismissal.

The burden of proof rests squarely on the Respondent to show substantial grounds which justify the dismissal. Section 6 (2) (1) provides:

"(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The Respondent choose not to attend to give evidence. There was no evidence presented of a fair and transparency process around the termination of the Complainant’s employment. He was not consulted about alternatives to redundancy. While there was a casual suggestion around  leasing the business, I do not accept this as alternative employment. The Respondent did not even afford the Complainant the opportunity to meet with him to discuss the redundancy situation. Any correspondence was either via text message or phone between the parties other then when the Complainant, was driven to the premises by a friend due to this broken leg, in the hope of speaking with Mr John Cashell Junior as he had not received a response to his text messages and emails. He did meet with Mr John Cashell Senior on that occasion and sought to resolve the issue of payment of outstanding monies. The did not describe this as a successful meeting.

The High Court in JVC Europe v Panisi [2011] IEHC 279 held that the genuineness of a redundancy can be assessed by whether the employer following fair procedures. The Court went on to state, “A fair selection process may indicate an honest approach to redundancy by the employer”. There is no evidence presented that a fair and objective criterion in the selection of the Complainant for redundancy was applied by the Respondent. Consequently, I find that the Complainant was unfairly dismissed from his employment by reason of unfair selection for redundancy.

Financial Loss

Section 7, Unfair Dismissals Act 1977 defines financial loss“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;”

It is noted that the Complainant did receive his statutory redundancy entitlement. Therefore, the Complainant is not entitled to compensation for financial loss attributable to any loss or diminution of any entitlement to the Redundancy Payments Act 1967 as he was paid the lump sum. Neither is there a statutory basis pursuant to S. 19, Unfair Dismissals Act 1977 to deduct redundancy payment where an employee is reinstated or reengaged by his employer. The Complainant in this case has moved on and obtained alternative employment and seeks only compensation.

Applying the decision in Murray v Sherry Garden Rooms Limited, ADJ-00028766 wherein it was decided; “Deducting a lump sum from an award of actual or prospective loss undermines the effectiveness of the protections offered by the Unfair Dismissals Act, especially for employees with long service” it would not be appropriate to consider a deduction to the Complainant’s claim.

S.6 Unfair Dismissals (Amendment) Act 1993 amending S.7 of the 1977 Act addresses the circumstances where there is no financial loss:-

“(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

The Complainant in this case was unable to work due to a broken leg from May 2021 until the end of September 2021 when he was deemed fit to return to work by his doctor. Where there was no financial loss due to this illness as defined by S.7 of the Act from May to September 2021, I am limited in what I can award the Complainant to an amount of 4 weeks renumeration. He subsequently obtained alternative employment on 12 October 2021 at a higher rate which he must be commended for and award him a further 2 weeks for this period of financial loss.

CA-00046536-001 - Pay

I find that the Complainant’s evidence to be clear and supported by correspondence from the Respondent acknowledged that minimum notice was due and owing. As regards the annual leave payment and week in hand worked, I accepted the undisputed evidence of the Complainant.

The evidence from Complainant as to his inability to take his full annual leave entitled during 2020 and carried it over to 2021 and therefore was entitled to payment upon termination of his employment, removes the necessity to consider the 6-month time limit provided under the Act.

Therefore, I find the Complainant’s well founded in relation to the non-payment of wages.

CA-00046087-001 - Unfair Dismissal

I find the complainant was unfairly dismissed from his employment by the Respondent and award him the sum of €2,880.

CA-00046536-001 - Pay

I find the complaint is well founded and award the Complainant the total compensatory sum of €3,840.

Unfair dismissal – redundancy – deduction of redundancy – pay – annual leave – minimum notice