Complainant

Respondent

Parties

Brian  Healy

Pilvine Ltd trading as Positive Signs

Representatives

Dave Curran of SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038269-001

23/06/2020

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

CA-00039852-001

16/09/2020

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

CA-00044802-001

26/06/2021

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

CA-00044802-002

26/06/2021

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

CA-00044802-003

26/06/2021

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

CA-00046458-001

30/09/2021

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

CA-00046458-002

30/09/2021

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

CA-00046458-003

30/09/2021

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

CA-00048692-001

17/02/2022

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

CA-00048692-002

17/02/2022

The complainant submitted five claims against the respondent between 23 June 2020 and 17 February 2022. The respondent is Pilvine Limited trading as Positive Signs; which is the respondent named on ADJ-00028774, ADJ-00030310, ADJ-00035378 and ADJ-00037368. ADJ-00033978 names the respondent as Positive Signs Ltd trading as Positive Signs. Given the correct naming on the other 4 ADJs I accept this as an oversight and that the complainant intended to name Pilvine Limited.

The complainant submits he started working for the respondent in 2016 as Production Manager. He says that from early 2020 he was being side-lined.

ADJ-00028774 – CA-00038269-001 (23/06/2020) Payment of Wages: The complainant submits he was laid off on 16 March 2020 and he was given no notice of the lay off. On 20 March he was asked to return his van. Also, the respondent continued to trade for a further week, before others were laid off. The respondent resumed trading in early May and he was not brought back but others were.

He contacted the respondent to ask why he had not been brought back and asked for the selection process to bring someone else, with less service, back but not him. He did not get a satisfactory explanation. He returned to work on 1 July 2020.

The complainant contends there was a breach of his employment contract for the ten weeks where work was available but he was not brought back to work. He says his loss of earnings was €5,000 for this period of ten weeks.

ADJ-00030310 – CA-00039852-001 (16 September 2020) Terms and Conditions of Employment: the complainant submits he had been provided with a company van since the start of his employment in July 2016 until he had to return it when he was laid off in March 2020. In April 2020 the respondent told him they were selling the two company vans and he could make an offer to buy one. The complainant eventually purchased a cheap car to ensure his availability for work. He returned to work in July 2020 to find neither van had been sold. However, neither was returned for the complainant to use. He claims to have suffered a loss of €720, €80 per week for nine weeks, plus €1,600 for the purchase of a car.

The complainant expressed his dissatisfaction, and the respondent fitted a dash cam, with cameras pointing inwards and outwards. The complainant submits the fitting of the dashcam to be a change to his terms and conditions of employment. The complainant contends the dashcam was fitted because of the previous claim he has submitted to the WRC.

ADJ-00033978 (26/06/2021) and ADJ-00035378 (30/09/2021) (same complaints)   

CA-00044802-001 and CA-00046458-001 - Payment of Wages: the complainant submits he had been put of lay off on 23 April 2021 and not been paid. Another employee was kept working during this period. He says there is nothing in his contract to state that he can be put on lay off without pay.

CA-00044802-002 and CA-00046458-002 - Terms and Conditions of Employment: the complainant submits he never received a written statement of his terms and conditions of employment.

CA-00044802-001 and CA-00046458-003 - Unfair Dismissal: The complainant submits he was made redundant and there was no fair selection process. The respondent mis-characterised his job title. He does not accept it was a genuine redundancy but a dismissal in the guise of a redundancy.

ADJ-00037368 (17/02/2022) Redundancy Payments

CA-00048692-001: the complainant submits that he did not receive the correct redundancy payment. The respondent deducted €593.48 in relation to an invoice from 18 months earlier. He says he did not owe this money and the deduction was unlawful. The company’s HR consultants investigated this and confirmed that it was unlawful but it has not been paid back to the complainant.

CA-00048692-002: the complainant submits the respondent did not factor in a benefit in kind when calculating his redundancy payment.

ADJ-00028774 – CA-00038269-001 (23/06/2020) Payment of Wages: The respondent submits that at a company meeting on 12 March 2020 the complainant said his wife was going to Poland until 16 March. Because of the uncertainty around Covid-19 the complainant was requested to remain at home for the week, in the interests of the Health & Safety of all other members of staff.

At the same meeting the respondent explained that, because of  cancelled work and there being no work in the workflow, staff would be on layoff from 20 March. Then Covid-19 took a serious turn and the complainant was put on layoff due to the pandemic from 23 March and he was given an RP9. The company fully reopened in July 2020, when the complainant returned to work until October 2020.

The complainant was made aware of his layoff when he was provided with a copy of the RP9 form. During his time on Layoff the complainant was in receipt of available government subsidies.

ADJ-00030310 – CA-00039852-001 (16 September 2020) Terms and Conditions of Employment: the respondent submits the complainant was provided with a company van in 2017, after his own broke down. He was able to use the vehicle to commute to and from work. It was, at times, used by other members of staff.

When the complainant was put on lay-off he delivered the vehicle to the home of another member of staff. In September when the complainant expressed dissatisfaction at not having the use of the van he was advised there was a company vehicle available for his use, if he wished to use it.

Company records show the complainant used the company vehicle every day he attended work from his return on 2 July 2020 until his temporary lay-off at the end of October. The benefit of the use of the vehicle was never lost but he did not always avail of the use of the vehicle.

ADJ-00033978 (26/06/2021) and ADJ-00035378 (30/09/2021) (same complaints)   

CA-00044802-001 and CA-00046458-001 - Payment of Wages: the complainant was put of Covid-19 related lay off on 23 March 2021 and he was sent an RP9 lay-off form. Some essential work was carried out by the owner of the company and another employer who had specific experience in supporting the company’s website and e business. The complainant returned to work in July when the business fully re-opened and worked until October 2020 when the business was required to carry out layoffs due to the worsening Covid pandemic.

CA-00044802-002 and CA-00046458-002 - Terms and Conditions of Employment: the respondent submits the complainant commenced employment with them on 18 July 2016. He was issued with a written contract on 19 March 2020, which he declined to sign.

CA-00044802-001 and CA-00046458-003 - Unfair Dismissal: The respondent submits the complainant was not dismissed, following a review of their operations his role was made redundant and he was made redundant in April 2021.

ADJ-00037368 (17/02/2022) Redundancy Payments

CA-00048692-001: the respondent submits that a deduction was made from the complainant’s final payment. This was for the cost of materials used by the complainant to carry out private work on their premises. An invoice for €593.48 had been given to the complainant when the work had been done but had not been paid. This was not related to the complainant’s redundancy payment.

CA-00048692-002: the respondent submits the use of a van was not a benefit in kind that should have been taken into account in calculating the complainant’s redundancy payment.

ADJ-00028774 – CA-00038269-001 (23/06/2020) Payment of Wages: This claims relates to the non-payment of salary for ten weeks when the complainant says work was available but he was not brought back but others were.

The respondent says they laid off staff when orders were cancelled and the effects of the pandemic were being felt. Some essential work was carried out during the March – July 2020 by members of staff involved in the website and their e business.

The complainant was eligible for the state Pandemic Unemployment Payment during this period.

The complainant could not understand why some members of staff worked at certain times during this period but he did not. I accept the respondent’s evidence that those who were employed between March and July were specifically chosen for their skills and experience, to carry out work on particular projects. These were skills and experience which the complainant did not have.

I therefore find the complainant does not have a case of non-payment of wages and his complaint is not well founded

ADJ-00030310 – CA-00039852-001 (16 September 2020) Terms and Conditions of Employment: the complainant contends he lost the use a company van to carry out his work and for his personal use., from March 2020. The respondent says he could have used the van but chose not to do so.

The evidence given by the two parties was contradictory in relation to the use of the van. In considering all the evidence provided I conclude that the complainant could have had the use of the van to carry out his work when he was not on lay-off during the period March 2020 to April 2021. However, at different times, he chose not to ask for the use of the van or not to take up an offer made by the respondent. This seems to stem from when the van was returned in March 2020 and the complainant could not accept this. 

The complainant also considers the fitting of a dashcam to be a change to his terms and conditions of employment. The respondent says they fitted the dashcam to comply with the requirements of a particular customer.

I conclude that neither the availability of the van of the fitting of a dashcam to the van to be a change to the complainant’s terms and conditions of employment and the complainant is not well founded.

ADJ-00033978 (26/06/2021) and ADJ-00035378 (30/09/2021) (same complaints)   

CA-00044802-001 and CA-00046458-001 - Payment of Wages: the complainant contends he was put on lay-off unlawfully, as there was nothing in his contract to say he could be laid-off. However, this is based on his contention that he did not have a contract. However, he was issued with an RP9 form, which is the state form for the putting of staff on lay-off. In these circumstances I find this claim is not well founded.

CA-00044802-002 and CA-00046458-002 - Terms and Conditions of Employment: the evidence provided demonstrates that the complainant was not issued with his terms and conditions of employment when he started work for the respondent on 18 July 2016. He was given a contract of employment with his terms and conditions of employment on 19 March 2020 but the complainant chose not to sign it.

I conclude the complainant was not given written terms and conditions of employment at the start of his employment, as required by the legislation. I find this complaint is well founded. I note he was issued with a contract of employment, which contained his terms and conditions of employment, in March 2020 but he refused to sign the contract. 

CA-00044802-001 and CA-00046458-003 - Unfair Dismissal: The complainant contends that when he was made redundant there was no fair selection process, and he does not accept it was a genuine redundancy but a dismissal in the guise of a redundancy.

The respondent says they carried out a review and this effectively did away with the vast majority of sign fitting which required an employee to go out to a customer and fit signs, which was the work of the complainant.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company, who say the dismissal was on the grounds of redundancy. Section 6 of the Unfair Dismissal Act, 1977 provides:

“6. – (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.

(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:

... (c ) the redundancy of the employee”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(2) For the purposes of subsection (1), 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 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 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 case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”    

The evidence of the respondent is that during the pandemic the orders for signs that needed to be fitted dried up. The owner, with the assistance of another employee, looked at other areas of work. These were electronic sign production and e business and the complainant did not have the necessary skills and experience for this work. They further decided it was far more economic to sub-contract the small amount of sign fitting that might be needed.

This was a small company, with a maximum of five employees. They had found themselves in the position of losing a lot of their traditional work and undertook a change of direction to try and ensure it’s survival. I consider this to be a legitimate, forward-looking strategy. Unfortunately, the complainant, because of the reduction in the amount of sign fitting which would be part of the company, had no role. There was a dispute as the title of the complainant but it is clear to me that his primary function was that of sign fitting and he did not have the skills and experience to have a role in the company’s way forward. 

Accordingly, I find redundancy, within the definition given in the Redundancy Payments Act, was the primary reason for the complainant leaving the respondent’s employment and the dismissal was not unfair.

ADJ-00037368 (17/02/2022) Redundancy Payments

CA-00048692-001: the complainant alleges that €593.48 was incorrectly deducted from his redundancy payment. The respondent says this had nothing to do with the redundancy payment but related to an invoice for supplies which the complainant had not paid the company.

I accept the respondent’s evidence that the €593.48 was not a deduction from the complainant’s redundancy payment.

CA-00048692-002: the complainant contends his redundancy payment should have included an allowance for the benefit in kind he received for the use of the van. The respondent contends this does not amount to a benefit in kind.

I agree with the evidence of the respondent and conclude the complainant did not have a benefit in kind which should have been included in his redundancy payment.

ADJ-00028774 – CA-00038269-001 (23/06/2020) Payment of Wages: for the reasons given above I find the complaint is not well founded.  

ADJ-00030310 – CA-00039852-001 (16 September 2020) Terms and Conditions of Employment: for the reasons given above I find the complaint is not well founded.

ADJ-00033978 (26/06/2021) and ADJ-00035378 (30/09/2021) (same complaints)   

CA-00044802-001 and CA-00046458-001 - Payment of Wages: for the reasons given above I find the complaint is not well founded.

CA-00044802-002 and CA-00046458-002 - Terms and Conditions of Employment: for the reasons given above I fin the complaint is well founded and I award redress of two weeks salary; €1,010.

CA-00044802-001 and CA-00046458-003 - Unfair Dismissal: for the reasons given above I find the complaint is not well founded and the complainant was not unfairly dismissed.

ADJ-00037368 (17/02/2022) Redundancy Payments: for the reasons given above I find the complaint is not well founded.

CA-00048692-001: CA-00048692-002: for the reasons given above I find the complaint is not well founded.

Not unfairly dismissed - redundancy