Complainant

Respondent

Parties

Kevin  Dowd

Kalee Consulting Limited

Representatives

Mr. Colm Conway, Cathal L Flynn & Co Solicitors

Self-Represented

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-00041158-001

20/11/2020

The Complainant’s employment commenced on 1st April 2012. The Complainant worked an average of 25 hours per week and received an average weekly wage of €289.72. The contract of employment was terminated by the Respondent on 2nd October 2020.

On 20th November 2020, the Complainant referred the present complaint to the Commission. Herein, he alleged that he had been summarily dismissed without recourse to any form of procedure. In denying this compliant, the Managing Director of the Respondent submitted that the dismissal of the Complainant was fair on the grounds of a valid redundancy.  

A hearing in relation to this matter was convened for, and finalized on, 20th December 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant gave evidence under affirmation in support of his complaint. The Managing Director of the Respondent likewise gave evidence under affirmation in defense of the matter. All evidence was open to cross examination by the opposing side. Apart from a brief outline of the Complainant’s case on the complaint form, neither party issued written submissions in advance of the hearing.

At the outset of the hearing, the Respondent suggested that as the Complainant was employed by him for less than one year, he did not enjoy the protections of the impleaded Act. However, following a brief discussion in relation to the same, it became apparent that the Complainant commenced employment with the Respondent in July 2019 (he further alleged that his service is longer due to transfer on this date). In such circumstances it is apparent that the Complainant has sufficient service to engage the jurisdiction of the Act and the substantive matter will be considered.  

The Complainant stated that he commenced employment on 1st April 2012. The Complainant was engaged as a caretaker throughout his employment, with the primary location of his employment being the car park of a retail centre.  

The Complainant’s employment was uneventful until the onset of the restrictions arising from the Covid-19 pandemic. As these restrictions reduced the capacity of the trading of the retail outlet, the Complainant’s services were not required and, as a consequence, he was placed on lay-off. Whilst the Complainant was on lay-off he noticed an advertisement that he believed to be for his role. On foot of the same, the Complainant emailed the Respondent enquiring as to the status of his employment. By response, the Complainant was invited to a meeting in the Respondent’s offices. During this meeting the Complainant was informed that his services would no longer be required and he considered his employment to be terminated.

By submission, the Complainant’s representative submitted that the Complainant had been dismissed without recourse to any form of procedure. He submitted that the Complainant was unsure as to the reason for his dismissal until the date of the hearing. Regarding the Respondent’s position that the Complainant was dismissed on the grounds of redundancy, the Complainant’s representative stated that this had not been proven in any sense and that no process or appeal was utilised in relation to the same. In such circumstances, the Complainant’s representative submitted that the Complainant had clearly been unfairly dismissed.

By response, the Respondent submitted that the dismissal of the Complainant was fair on the grounds of redundancy.

The Managing Director of the Respondent submitted that the Complainant commenced employment with the company in 2019. At this point, the Complainant was attached to a contract that the Respondent had acquired. In 2020, on foot of the restrictions imposed to reduce the spread of the Covid-19 virus, the Complainant was placed on lay-off. The period of Covid-19 caused a significant amount of trading difficulty for the Respondent, leading to consequent difficulties in their operating finances. In addition to the same, the Respondent became aware that the retail park in question raised some issue with the quality of the Complainant’s work. In such circumstances the Respondent elected to make the Complainant redundant. The Complainant was invited to a face-to-face meeting for this purpose.

By submission, the Managing Director stated that the restrictions arising from the Covid-19 virus caused significant trading difficulties for this business. On foot of the same, he was forced to make a difficult decision in relation to making the Complainant redundant. In such circumstances, he submitted that the dismissal of the Complainant was fair for the purposes of the present Act.

In answer to a question, the Managing Director accepted that the Complainant was not given an opportunity to contest the issues raised by the third party.   

In the present case, the Complainant has alleged that he was essentially summarily dismissed from his employment. In denying this allegation, the Respondent submitted that trading difficulties arising from the Covid-19 pandemic created a situation whereby the Complainant’s employment was redundant within the meaning of the Redundancy Payments Acts.

Section 6(1) of the Unfair Dismissals Acts provides that,

“…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.”

Section 6(4)c of the Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

Section 7(2) (as amended) of the Redundancy Payments Acts provides that,

“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 purpose 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.”

In the present case, the Managing Director of the Respondent submitted that the introduction of the restrictions arising from the Covid-19 virus had a significant on the turnover of the Respondent. In such circumstances he was required to examine cost-saving measures, including the redundancy of the Complainant. Having regard to the foregoing, it is apparent that this situation would be analogous to that described in Section 7(2)(b) above.

However, in order to discharge the burden of proof imposed by Section 6(6) of the Act, the Respondent must demonstrate that the dismissal of the Complainant was both procedurally and substantively fair. In this regard I note that the Respondent did not engage in any form of process or consultation prior to making the Complainant redundant. I further note that the Respondent did not provide any corroborating evidence regarding the issues he outlined in direct evidence. I further note that a role, remarkable similar in nature to the Complainant’s, was advertised during the Complainant’s period of lay-off, undermining the Respondent’s position regarding a valid redundancy situation. Finally, I note that the Respondent obliquely referred to some conduct issues in his evidence. Such evidence undermines the Respondent’s position that the dismissal of the solely on grounds of redundancy as opposed to some other matter.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant was both substantially and procedurally unfair. As a consequence of the same, I find that the complaint is well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant found alternative employment some months following his dismissal. While I note that the Complainant stated he encountered some difficulty in securing alterative employment during this time, he did not provide any corroborating evidence of his efforts to mitigate his losses in accordance with the Act. Having regard to the totality of the evidence presented, in particular the Complainant’s evidence in respect of mitigation of losses, I award him the sum of €4,000 in compensation.

Redundancy, Process, Covid-19