Complainant

Respondent

Anonymised Parties

A Worker

A Charitable Organisation

Representatives

  Self-represented

Emer O'Callaghan, Solicitor JRAP O'MEARA SOLICITORS

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-00055687-001

23/03/2023

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

CA-00055687-002

23/03/2023

This case involves two complaints – one under the Unfair Dismissals Act 1977 and one under the Redundancy Payments Act 1967.

It is the Complainant’s submission that he worked for the Respondent organisation in a full-time role from 2020 to 2023 and that he was let go out of the blue – he was informed that the basis for this was redundancy. However, no processes were followed, and he disputes whether the redundancy was genuine. He has received no redundancy payment and highlights the lack of communication and lack of engagement by his former employer.

At the hearing, both complaints – the Unfair Dismissals complaint and the Redundancy Payments complaint - were conceded by the Respondent.

It falls to the Adjudication Officer to determine quantum in relation to the Unfair Dismissals claim.

It was indicated, by the Respondent, that the Insolvency Payments Scheme may be applicable in this case, in respect of the Redundancy Payment it conceded was due and owing to the Complainant.

The name of the Respondent company to these proceedings, was amended with the consent of the Respondent.

As per the Complaint form:

UNFAIR DISMISSAL

The Complainant submits that he first met his manager, MK, when he was attending a forklift course in 2019. He was initially offered some part-time work, and took up a full-time role in 2020, with the Respondent organisation.

The Complainant submits that he had been working in the Respondent organisation longer than most other employees, and had employment there as a van assistant. Sadly, MK, who the Complainant regarded as a good friend as well as his manager, died by suicide early in 2023.

The Complainant submits that things in the Respondent organisation went “downhill” after that, and he specifically cites lack of communication and a failure to keep the staff informed of what the future held for the company as particular problems.

On February 24th, 2023, at 19:39 (which the Complainant highlights was outside of workhours), the Complainant submits that he was contacted by TC, the son of the founder of the Respondent organisation, NM. The Complainant submits that TC informed him that the Respondent organisation’s shop and warehouse were both closing and people were going to lose their jobs. He was informed that he was one of the people who would be losing his job. He submits that he was told that the reason was his lack of a driving licence, and that he lacked skills. The Complainant highlights that he was never hired to drive the van. He says that TC proceeded to give him four (4) weeks’ notice. The Complainant describes himself as having been left “speechless”, by this turn of events.

The Complainant submits that he tried on two (2) separate occasions to have a face-to-face discussion regarding this situation and was ignored. He submits that the Respondent organisation has also refused to pay any redundancy payment, which he says is due and owing to him.

The Complainant outlined that he was under the impression that those working in the shop that closed would have been the ones affected by job losses. However, he highlights that NM’s other son had been back in employment with the Respondent organisation for six (6) months only; and that of the three (3) people that worked in that shop that closed, only one part-time employee lost their job, and the other two (2) people, who he submits were only there approximately six (6) months, are still employed.

The Complainant particularly wishes to emphasise the following:

-          The length of his tenure, which he submits considerably exceeded the length of tenure of other employees who did not lose their jobs.

-          That he has previous work experience, in other shops, selling furniture, some days by himself.

-          He submits that he was capable of working in the shop, and also capable of setting out routes for the van drivers, which he submits he did regularly. He also states that he “never had an issue with lifting furniture.”

-          That he “never called in sickin all his time” working for the Respondent organisation.

-          That he regularly handled ‘SumUp’ payments and card payments easily and enjoyed dealing with customers, with whom he submits he had a good rapport.

-          That he worked in one of three shops the Respondent organisation has in [geographic area redacted] and that his base location was different to the shop that was to be closed.

-          That he worked the majority of Saturdays, since he started full-time employment.

-          He also submits that he was the second longest employee in the company but was on the same money as everyone else.

-          His “shock and hurt” after receiving such a phone call after work hours.

REDUNDANCY

He submits that he made several attempts at this stage for a mature discussion about his redundancy payment which he submits “has fallen on deaf ears on every occasion.” He submits that nobody in charge was willing to meet him to discuss this matter. He submits that he made contact with Citizens Information who assured him that he was due this payment.

At the hearing

At the hearing, the Complainant represented himself. He re-iterated the broad facts, as set out, in his complaint form. He emphasised his connection with the Respondent organisation, the sequence of events which had occurred, that the last thing he wanted to do was find himself in circumstances where he had to take a WRC case against the Respondent organisation – an organisation for which he had done so much work, and for which he had so much time and with whose mission he felt such an affinity. He eloquently outlined his personal loss, the impact of the loss of both his friend and subsequently his job on him, and indicated that he himself had also suffered suicidal ideation as a result. He emphasised the support he had received from “good friends around me” and how crucial that had been to him, at such a difficult personal time and how grateful he was for that. He articulated his shock, confusion and hurt at the events which had occurred, at how they had occurred and he outlined the impact they had, and continued to have, on him.

As the Respondent had conceded both claims, the only matter for evidence was mitigation.

In his role in the Respondent company, the Complainant’s pay was: €715.36 Gross (€600.00 Nett) based on a 39-hour working week. The redundancy took effect on 23/03/2023.

The Complainant gave evidence in relation to mitigation, and was subject to cross-examination, as follows:

Subsequent to his redundancy, he had one day’s work on May 23rd, 2023, in a particular [name redacted] business, and he then took up a full-time position in another business, starting on 24/05/2023, in which he now earns €825.47 Gross (€688.74 Nett) based on a 39-hour week.

On cross-examination

The Complainant was asked what efforts he had made to find work in the period between the redundancy taking effect and him taking up his new position (between 23/03/2023 and 24/05/2023).

He said that he applied for nine (9) jobs, that he had used the Indeed app. He said that of those nine (9) applications, he got two (2) interviews.

He was asked whether he had had any self-employed work or cash work in that time. He said that he had not.

He was asked about his employment background and his qualifications. He outlined that he had a broad employment background and said that he had worked in a variety of jobs included previously worked in customer service and as a scaffolder. He said that in his current role he was a general operative but that in another three (3) months’ time, he would have scaffolding work with his current employer.

He was asked whether he was out of the country between being made redundant and taking up his new employment. He said that he was not out of the country.

He was asked whether he was in receipt of illness benefit during that time. He said that he was not.

The Solicitor for the Respondent at the hearing had received late instructions in the matter and had come on record on a pro bono basis, to represent the Respondent organisation.

In attendance on behalf of the company was NM, one of the Directors of the Respondent organisation.

Both complaints were conceded, on behalf of the Respondent organisation. It was submitted that the redundancy payment had not been paid, that the Insolvency Payments Scheme may be applicable in this case; and that the matter before the WRC was the assessment of that payment, on consent.

It was further submitted that early in 2023, the Operations Manager, MK, who was also the private partner of NM died by suicide. By March 2023, it became apparent that the Respondent organisation was in severe financial difficulty – there were debts owed to the Revenue Commissioners and a serious financial backlog. There was a crisis in the charity, at that time. Accountants came on board as did the Charities Regulator. It was submitted that there was a genuine basis for redundancy – it was financially based, it was in no way or part due to the employee. There was no legal advice taken at the time by the Respondent, and on reflection, it was submitted that it is fair to say that the procedures and the communications around redundancy were not optimal. It was further submitted that notice pay of one month was paid to the Complainant.

Even though both complaints had been conceded, in light of the lack of information from the point of redundancy until the WRC hearing, and the Complainant’s hurt and confusion at the unexpected turn of events, sight of accounts and an opportunity to review them was provided to him for clarity and information, on condition the Complainant gave an undertaking not to photograph the information or put it on social media, given its commercially sensitive nature, an undertaking he gave. Sight of the information was also provided to the WRC Adjudication Officer, at the hearing.

The hearing was conducted in public, in line with the principle of “open justice” and the requirements of the Supreme Court case of Zalewski v Ireland and the WRC [2021] IESC 24.

However, the Adjudication Officer has decided, of her own volition, to anonymise the names of the parties to the decision on the basis that “special circumstances” apply, in light of the sensitivity of the evidence of the Complainant, who was unrepresented, which was submitted in order to access a statutory entitlement (redundancy payment), in a complaint which the Respondent has conceded.

The Adjudication Officer extended her sincere condolences to all parties, at the hearing, and wishes to re-iterate that again in her decision. I wish to commend both parties for their conduct at the hearing, in what were objectively very difficult circumstances. I note that the matter was being navigated with dignity and respect, from the point where the Respondent instructed a legal team.

CA-00055687-001 – I find for the Complainant. The unfairness of the dismissal was common case, at hearing, and I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint is well founded.

The maximum jurisdiction under the Unfair Dismissals Act 1977 refers to two years’ remuneration, and it refers to all of the elements of an employee’s compensation package, not simply salary/wages. The jurisdiction refers to a monetary amount rather than temporal period.

Under the legislation, re-instatement and re-engagement are primary remedies, and compensation is a secondary remedy. In this instance, compensation was the remedy sought and I find that it is the correct legal remedy in the circumstances of this particular case.

I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses.

Under s. 7(3) of the Unfair Dismissals Act:

“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 Act, 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.

Mitigation

I find that the efforts the Complainant made to find employment, in the circumstances of this case were “reasonable” (in line with the requirements, as set out in, inter alia, the EAT case of Sheehan v Continental Administration Co Ltd UD 858/1999), especially in light of the surrounding circumstances of this case. I found the Complainant to be a very cogent, credible, honest and straight-forward witness.

CA-00055687-002

I find for the Complainant.

I find that the complaint is well-founded.

s. 7(2)a of the Redundancy Payments Acts lists the following situation as a ground for redundancy:

“…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 places where the employee was so employed.”

CA-00055687-001 – I find for the Complainant. I find that the complaint of unfair dismissal is well founded. I direct the Respondent to pay the Complainant the sum of €6,250 within 42 days of the date of this decision.

CA-00055687-002 – I find for the Complainant. I find that this complaint is well founded.

I allow the Complainant’s appeal under Clause 7.2 (a) and I award him redundancy on the following basis.  

Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis:

Date of Commencement: 02/07/2020

Date of Reckonable Service for Redundancy Payment Ceasing on: 23/03/2023

Gross Weekly Wage: €715.36 [Which exceeds the current cap of €600]

The Complainant’s period of “reckonable service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

TW: Suicide; Redundancy Payments; Insolvency Payments Scheme; Unfair Dismissal; Quantum; Complaints conceded; Special Circumstances; Anonymised;