Complainant

Respondent

Parties

Sean  Soden

Sutton Golf Club

Representatives

Self-Represented

Ms MP Guinness BL

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-00052403-001

24/08/2022

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

CA-00052403-002

24/08/2022

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

CA-00052403-003

24/08/2022

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

CA-00052403-004

24/08/2022

The issue in contention was the disputed ending of employment of the Complainant, a Bar Person, by a Golf Club.

The employment began in 2008 and ended in June 2022.

The Complainant worked casual hours varying from 20 to 50 hours depending on work demand. The rate of pay was stated to be €15 per hour.

The Complainant gave an Oral Testimony supported by written details on his Complaint form. He was cross examined by the Respondent Legal Advisor.

1:1        CA-00052403-001 - Unfair Dismissals Act,1977

The Complainant stated that he had been dismissed in breach of the Act.

No proper Employment procedures were followed.

He had been laid off due to Covid and had repeatedly enquired from the Respondent Managers during 2021 when he would be coming back post Covid. He then discovered that Students had been taken on to do his work. He received a letter on the 16th June 2022 from Mr Q, the General Manager informing him that he was no longer Employed. No discussions ever took place and his point of view was never taken into consideration.

1:2        CA-00052403-002 – Redundancy Payments Act ,1967

The employer had not made any Redundancy arrangements for the Complainant. He had continuous service from 2008 and was due a Redundancy payment in view of his long service.

1:3        CA-00052403-003 – Minimum Notice Act,1973

No statutory minimum notice had been paid.

1:4        CA-00052403-004- Payment of Wages Act,1991

No appropriate payment of Notice on Termination of Employment.

The Respondent was represented by Ms MP Guinness and witness were Mr Q, the General Manager and Ms C, the Club Governance Lead.

2:1       CA-00052403-001 - Unfair Dismissals Act,1977

The Respondent conceded this claim and accepted that an Unfair Dismissal had taken place.  An offer of Restitution of some 10 weeks’ pay had been made.

Notwithstanding the offer the Complainant had made no efforts at mitigation for the Loss of employment. It was understood he had been under the care of his GP since early 2022 and most likely on disability Benefit. He was clearly, in their view, medically unfit for work and as such no restitution (Section 7 of the Act) for an Unfair Dismissal could legally be warranted.

2:2         CA-00052403-002 - Redundancy Payments Act ,1967

The Respondent did not accept that any grounds existed to warrant a Redundancy claim.

The Complainant had been dismissed and no valid second complaint for Redundancy was warranted in the Respondent view. The Complainant had not worked at the Club since December 2019 save for one night in September 2020. He had informed the Manger, Mr Q, in May 2021, that he was not available for work as he was caring for his mother and reaffirmed this view at later conversations with Mr Q in the Autumn of 2021.

2:3        CA-00052403-003 – Minimum Notice Act,1973

The Respondent conceded on this claim but maintained that it had been resolved in the offer, mentioned at 2:1 above   

2:4      CA-00052403-004- Payment of Wages Act,1991

This complaint was in effect a repetition of the Minimum Notice complaint at 2:3 above and as such was covered in the offer referred to.

3:1       CA-00052403-001 - Unfair Dismissals Act,1977

The fact of an Unfair Dismissal was not contested by the Respondent. Section 7 of the 1977 Act must accordingly come into focus. Relevant extracts from Section 7 are quoted in full below.

Subsection 7 (1) (C ) (i) & (ii) and Subsection 7(3) are of particular interest.

Redress for unfair dismissal.

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49[the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(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,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(3) In this section—

“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.

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

(Underlining by Adjudication Officer.)

In plain English this can be accepted as meaning that where there is No Financial Loss Redress from an Adjudicator is limited to a maximum of four weeks’ pay. In this case the Complainant openly admitted that he had been on Disability Pay since June 2022 and therefor unable for work. On questioning from Ms Guinness, he stated that he had tried to get work but “His age was against him”

In this case Section 7 (3) “Financial loss” extends to

“any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973”

In other words, the issue of “Loss or Diminution of Redundancy Rights” has to be considered by the Adjudication Officer in determining Financial Loss.

Accordingly, the Redundancy situation has to be considered here before the issue of Redress under the Unfair Dismissals Act,1977 can be considered.

3:2        CA-00052403-002 - Redundancy Payments Act ,1967

The Complainant alleged that he was due Redundancy from June 16th 2022 dating back to his start date in 2008 (exact date was unclear).

Taking Schedule Three - Lump Sum/ Continuous Employment of the 1967 Act and combined with the Covid 19 Related lay-Off Payment Scheme the correct calculation of continuous serviceis complicated by the seasonal work pattern of the Complainant (generally only from April to December) and almost complete absences of the Complainant since December 2019 (stated by the Respondent Manager to be due to the “need to care for his mother”). The General Manager, Mr Q, in correspondence dated the 11th August 2022, stated that the Complainant had repeated this “Unavailability Reason” / fact in meetings in late 2021 when Covid restriction were ending. The Respondent had then recruited two students as casual workers to cover the casual /part time Bar work formerly done by the Complainant.

The Complainant was not professionally represented and the issue of whether or not he was in receipt of “Carers Leave” from the Dept of Social Protection was unclear. This would have been reckonable service under Schedule 3 (5) (c ) (iii) for example.

In overall summary and acutely aware of the many variables that only the detailed files of the Department of Social Protection – Redundancy Section can definitively rule upon, the Adjudication view is that the Complainant has raised a very strong inference that he is due a Redundancy payment.

The reasoning as to be that he had a long period of continuous service to the end of 2019. Covid had commenced in March 2020. No resignation was ever forthcoming and the period from December 2019 to March 2020 was not such as to break his service. The Covid Period was covered in the Covid 19 Related Lay-Off Payment Scheme.

The provisions of Section 7 of the Redundancy Payments Act,1967 - General right to redundancy payment Section 7(2) (c) quoted below seem to apply to the situation.

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(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

The Complainant’s work was now being done by Students. This was agreed by both sides.

The question of the Sworn Oath is relevant here. The Complainant under Oath testified that he was available for work and had requested to return. The General Manger, Mr Q, maintained that the Complainant had told him the opposite due to “the need to Care for his mother”.

On balance and having listened to the Oral testimony the Adjudication view had to be that the Complainant had raised a very strong inference that he had a valid Redundancy claim.

The weekly wage agreed by the Respondent was deemed to be €420 per week.

The exact details of this Redundancy (dates and amounts) can only be ascertained with certainty from the records of the Department of Social Protection.

In overall final summary the Adjudication conclusion has to be that the Complainant is entitled to a Statutory Redundancy Payment subject to satisfying the required administrative / record details from the Department of Social Protection.

3:3          CA-00052403-003 – Minimum Notice Act,1973

From the Hearing it was determined that this payment was covered by the Respondent Termination Offer in the Unfair Dismissal complaint. However, the Complainant has under the Act a minimum entitlement of some 8 weeks’ pay and this has to be considered separately.

3:4         CA-00052403-004- Payment of Wages Act,1991

No award is being made here as the issue has been resolved by the Minimum Notice,1973 complaint resolution above CA-00052403-003

Unfair Dismissal, Redundancy Act, Minimum Notice.