Complainant

Respondent

Parties

Piotr  Ulmanski

Steam Esco Ltd.

Representatives

  Self-Represented

 Keith Moore, CEO

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-00057848-001

23/07/2023

The Complaint Form was received by the Workplace Relations Commission on 23 July 2023.

The Complainant swore an affirmation and presented his oral and documentary evidence.

Mr. Keith Moore, CEO swore an affirmation as did Ms. Theresa Davey, Accounts Manager. Documents were also relied on in evidence by the Respondent.

The Complainant gave evidence that he was made redundant without notice or consultation by his employer. It was his evidence that when he returned from annual leave in July 2023, access to his email and company card were restricted. On 12 July 2023, he was presented with a redundancy notice and told to back up his things. He did not have an opportunity to gather his thoughts or presented alternatives. He was given two weeks’ notice payment in lieu but noted in the letter he received from the Respondent that 6 days annual leave was being deducted from this payment , leaving him with 4 days pay. It was his evidence this caused further stress on him as he worried how he would pay the bills.

The Complainant presented evidence of a job which was advertised after he was made redundant. It was his evidence that had he been consulted with he would have been able to demonstrate his experience in accounting.

It was his submission that the redundancy process was not followed.

The Respondent gave evidence first. Mr. Moore outlined the Respondent’s financial difficulties and the need for cost-cutting and restructuring. The company accounts were referred to. He repeated throughout his evidence that the decision had to be made very quickly.

On 12 July 2023, Mr. Moore’s evidence stated that he called the Complainant into his office, along with Ms. Davey, and gave him notice of his redundancy. He paid him two weeks' notice in lieu of working out the period. As a courtesy, he paid him for the 6 days of annual leave which he had not yet accrued.

Upon cross-examination, Mr. Moore was asked about the lack of a consultation period. He advised that he followed advice he received online. He was also asked about the selection criteria; he replied that the Complainant’s job did not generate any income and that he was able to delegate the tasks to other people in the organisation. Mr. Moore later stated in his evidence that restructuring means distributing the duties among other employees.

Mr. Moore was asked about the job advertisement for an Accounts Assistant, posted 16 days after his employment was terminated. His evidence stated that the Accounts Manager was moving abroad, and an assistant was needed. He said that based on the CV originally submitted by the Complainant, he had no accounts experience and never had access to the Respondent’s accounting software. It was suggested to Mr. Moore that had he allowed for a consultation period, the Complainant could have outlined his experience in accounts and QuickBooks, but he was not given this opportunity. It was suggested to Mr. Moore that the CV provided to him was tailored for the position of Office Administrator and did not include anything relating to accounts. He stated that the position required someone familiar with Sage, QuickBooks, payroll, Profit & Loss accounts, and statutory filing requirements. It was suggested to Mr. Moore that none of these requirements were in the job advertisement. Mr. Moore denied this.

Mr. Moore was asked about the timing of the payment of the 6 days of annual leave. It was suggested to him that the letter the Complainant received on 12 July 2023 stated that the annual leave would not be paid, but it was paid after the complaint was filed with the WRC. Mr. Moore agreed that this payment was decided after their meeting on 12 July 2023.

Inquiries were made of the CEO in relation to the timing of the redundancy and how such a decision was made in a hurry. He was asked when the decision was made to make the Complainant redundant, and he said it was the day before the redundancy notice was given to the Complainant. His evidence stated that one other employee was made redundant in the survey department, which came about following a discussion with the department. It was both he and Ms. Davey who decided to make the Complainant redundant.

Ms. Davey gave evidence of the financial situation of the Respondent and that by April, loans were obtained to keep the company afloat. This continued in May and June. The redundancy plan was approved after Mr. Moore spoke to the Board. Redundancy payment was made in full to the Complainant.

Ms. Davey’s evidence stated that she took on the Complainant’s role but, as she was no longer working from the office, it was decided the Respondent needed someone in Wexford.

Asked about the job advertisement for an Accounts Assistant, her evidence was that it was kept 'quite basic to see the response,' but the Respondent did need someone with accounts experience. Upon inquiry, she stated that these questions were asked in the interview. Ms. Davey confirmed no interview assessment notes were kept. Upon cross-examination, Ms. Davey was asked why someone was needed in the office to carry out the accounts function. She said this was always the case.

Upon further inquiry, Ms. Davey confirmed that at that time there were no pay cuts and no one was put on short time or layoff. Her evidence was that she was trying to keep the team together.

Asked when she decided to move abroad, she replied that she told the CEO towards the end of July 2023, around 26 or 27 July 2023, and moved that week. Asked who was carrying out the duties of the Complainant, she confirmed she was.

Ms. Davey was asked about the timing of the advertisement on Indeed. Her evidence was that it was posted on 27 July 2023. Asked why a new employee with 1 year of experience in Microsoft Office Suite and ad-hoc accounting work was required when the Complainant was at the same time being paid in lieu of notice. Ms. Davey was asked why she did not offer the Complainant the opportunity to apply for the role to which she said he did not have the experience.

Section 6 of the Unfair Dismissals Act 1977 states:-

“(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, and…..”

Section 6 (6) continues….

“(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

It is necessary to next look at the reasons for redundancy which is contained the Redundancy Payments Act 1967.

Section 7 (2) of the Redundancy Payments Act 1967 (as amended) sets out a number of situations in which redundancy may arise:-

“(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,”.

There was no dispute around the financial position of the Respondent by the Complainant. It is noted that the Profit and Loss accounts presented were not signed nor were they verified. It was not disputed that another employee was also made redundant and therefore, it is accepted that the Respondent was in a difficult financial position. However, there is a dispute regarding the evidence that a loan had to be obtained to cover the wages in the second quarter of 2023. The Respondent has considered a shorter working week, layoff, or a wage reduction. Therefore, it is clear that the Respondent failed to consider any alternative options to redundancy.

It is not disputed that the decision to make the Complainant redundant was presented as a fait accompli, at the meeting of 12 July 2023, to the Complainant without prior consultation. The clear reality of this case is that the Respondent made no effort whatsoever to consult with the Complainant about his role, nor was he given an opportunity to present an alternative to redundancy. The Respondent relied heavily on a CV from the Complainant from 2022, which the CEO went to great lengths to point out did not include any accounting experience. This was repeated by Ms. Davey. Mr. Moore denied that the position of Office Accounts Assistant, advertised on Indeed on 27 July 2023, required any accounting experience, instead describing the position as one more akin to that of a Chartered Accountant.

 The job described in the advertisement of 27 July 2023 was clearly comparable to that of an Office Administrator where the only experience sought was in the Microsoft Office Suite. There was no mention of Sage, QuickBooks, Profit and Loss, or any other accounting skills or knowledge. I do not accept the

Furthermore, I do not accept that the need for this position arose only 16 days after the Complainant was made redundant. It is blatantly clear that the Respondent decided to terminate the Complainant, not because the role was redundant, but to replace the Complainant with an employee on a salary of between €7,399 and €11,399 lower than his annual salary.

I do not accept the evidence of either witness for the Respondent. The story was entirely unbelievable. Consequently, I find the Complainant was unfairly dismissed from his employment. 

I find the Complainant was unfairly dismissed and award redress in the sum of €18,199.98, the equalitvant of 6 months salary as being appropriate having regard to all the circumstances.

Redundancy- Consultation – Unfair Dismissal