Complainant

Respondent

Parties

Gary  Powell

C&F Tooling Limited

Representatives

Alan Ledwith BL instructed by DM O'Connor Solicitors

Tom Harrington C&F Group

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-00036162-001

15/05/2020

The complainant submits that he was unfairly dismissed, that he was unfairly selected for redundancy and that his employment was terminated because of personal injury proceedings he issued against the respondent and that no other alternative roles were explored.  The respondent submits that the dismissal was not unfair, that the dismissal was because of redundancy and that any financial loss is not attributed to dismissal but attributed to physical restrictions which does not allow the complainant to obtain a higher paying job.

The respondent provided a stenographer to transcribe evidence of the Complainant and a copy of the transcript was furnished to the Adjudication Officer who forwarded a copy to the complainant.

In response to the complainant’s query as to why a stenographer was present, the respondent submitted that the complainant is under oath/affirmation and because there is a personal injuries claim pending, the respondent requires a record and it would be for the judge deciding on the personal injuries claim to decide on admitting the transcript into evidence.  The respondent submitted that a stenographer is permitted in the Labour Court and in response to a request by the complainant for a copy of the stenographer’s transcript, the respondent responded that the complainant could have a copy if they paid for same.  The complainant submitted that as a copy of the transcript which would be sent to the adjudicator, and in line with normal procedures a copy of such correspondence would be issued to parties, the complainant would receive a copy in that manner.  There was no objection from the respondent and the hearing then proceeded.

Preliminary Issue:

The respondent submitted that the complainant has parallel proceedings of a High Court claim for personal injuries and financial loss under common law. It was submitted that the complainant was now required to make an election to proceed on the financial loss claim either under the Unfair Dismissal Acts or at common law.  Further, the spectre of differing evidence given in two separate forums related to the same issue (the cause of his alleged financial loss), requires the Complainant to be placed under oath in the WRC. In these proceedings financial loss is claimed as the direct result of an alleged unfair dismissal. In the High Court proceedings, the same financial loss is claimed as a direct result of alleged long term medical sequalae from an alleged work-related injury which is pleaded by the Complainant in the High Court proceedings including:

“The Plaintiff is unable to lift anything of any weight with outstretched arms and has constant low-grade pain and is aggravated by daily activity which can be a very sharp pain which at times can be sustained for a few hours. The pain has great intensity.” …..He will have permanent low-grade neck pain and will be restricted in his future work.”

It was submitted that the Complainant signed an affidavit of verification attesting, under oath, to the truth of the above assertions contained in his pleading.

Substantive Issue:

The respondent submitted that the complainant was employed as a Computer Numeric Controlled (CNC) Operator under a contract of employment dated 26 October 2010.  CNC operators work with computer numeric controlled heavy machinery from setup to operation to produce parts and tools from metal, plastic, or other materials. CNC equipment is precision machinery that cuts, grinds, or drills into the material. At all relevant times, the Complainant worked on a machine purchased by the Respondent exclusively for production of bespoke wind turbine parts ordered by one customer, C&F Green Energy limited (CFGE). Most of the parts machined by the Complainant were small enough to be loaded into the CNC lathe manually. The larger parts would arrive on a pallet by forklift. CFGE was a wholly owned subsidiary company of Respondent engaged in the manufacture, sale, service, and maintenance of small wind turbines throughout the world. CFGE purchased a variety of wind turbine parts from the Respondent and in this way CFGE was a customer of the Respondent. CFGE was the sole customer of the Respondent in the wind turbine industry and the sole customer of the Respondent in relation to purchasing the bespoke parts for CFGE small wind turbines.

At all relevant times, the Complainant spent 100% of his time working exclusively on the lathe producing wind turbine parts for CFGE.  In early 2019, CFGE experienced a complete collapse in customer orders for its wind turbines. This had the knock-on effect of a collapse in orders for the wind turbine parts produced by Respondent for CFGE.  CFGE ultimately entered a creditors voluntary liquidation, with a liquidator being appointed to CFGE at a meeting of creditors in April 2019. CFGE ceased trading and all parts orders from CFGE stopped.  Many of the Respondents employees working on CFGE production were immediately affected. From March 2019 to November 2019, 24 of the Respondent’s employees engaged in CFGE production and associated activities either left voluntarily or were made redundant as a direct result of the liquidation of CFGE.  The Complainant, however, was on certified sick leave from 14 March 2019 to 16 July 2019 and was, therefore, not immediately affected by the liquidation of CFGE. 

The Complainant returned to work on 16 July 2019. However, upon his return there was little to do beyond a couple of service-related exchange alternators. The Complainant and the other remaining employees in the CFGE production area were kept occupied cleaning and oiling the machines, painting benches etc, until the commencement of the Respondent’s annual two week shut down for holidays which began on 29th July 2019 and ended on 13th August 2019. Prior to the holiday shut down, the Liquidator of CFGE contacted the Respondent regarding a potential one-time parts order for 57 turbines to be sold by the Liquidator to Japan. In the event the Liquidator acquired this order (which he did), he would in turn order the required parts from the Respondent for the build of the 57 machines. However, it was clear there would be no further orders from the Liquidator beyond the parts required for the 57 machines. The CFGE liquidator finalised the sale for the turbines in mid-August 2019 and the Respondent immediately began manufacture of the required parts to the Liquidators order. Parts continued to be produced until the first week of November 2019 when all parts for the order had been fully produced. It was well known within the Respondent that after the completion of the orders for the Liquidator there would not be further work for those employees engaged in the production of parts for CFGE wind turbines.

On 29 November 2019, with no further orders for turbine parts and no parts which could otherwise be produced on the lathe for any other customer, the Complainant received his 4 weeks’ notice of redundancy with payment in lieu. The Complainant’s severance date was 27th December 2019 and was subsequently paid his entitlements with the last payment occurring on 3 January 2020.  After the receipt of his redundancy notice on Wednesday, 29 November 2019, there was no further contact whatsoever from the Complainant for a period of three weeks and 2 days from the date of notice.  Then in an email of Friday, December 20, 2019 the Complainant, for the first time, expressed his disappointment at his role being made redundant alleging it occurred without consultation or any right of appeal. 

Although the Complainant expressly made no request of the Respondent to do so, the Respondent treated the Complainant’s email of 20 December 2019 as a Grievance, triggering the Respondent’s Grievance procedures as set out in the Employee Handbook. The Complainant expressly acknowledged receiving a copy of the Employee Handbook in  December 2017 and the Complainant was offered a meeting to be held on 9 January 2020 in accordance with the terms of the Grievance policy. In an email dated 6 January 2020 the Complainant indicated he was not inclined to attend a meeting stating

“Under the circumstances, what purpose would a meeting at this late stage serve? The redundancy has been finalised and my trust in your company has been completely undermined.”

In a replying email dated 7 January Respondent replied:

 “The offer of a meeting on Thursday 9th January 2020, is in reply to the formal grievance raised in your email dated 20/12/19 in accordance with the Company grievance procedure. I would point out that the Company has just returned from the annual Christmas shut down and you have continued to be paid throughout the period since receiving notice of your redundancy. Please confirm if you wish to attend the meeting scheduled for Thursday 9 January or, if this is not convenient, you would like to suggest another date.”

In his email of 8 January 2020, the Complainant refused to attend the meeting saying:

“I will not be attending a meeting with you on Thursday.” 

On 12 December 2019, the Complainant attended a medical examination for the purpose of a medical assessment of his disablement. A medical report was issued the same day, 12th December 2019. On examination, the medical physician found several moderate to profound restrictions on the Complainants physical abilities affecting his work. The report further stated:

“Gary went back to work but found that work really aggravated his pain. He found that his pain was a lot worst in the evenings after work, He found that there were certain movements involved in his job that he was physically no longer able to do, … Gary's symptoms of neck pain are unlikely to improve much more than they have to date, He is likely to have permanent low-grade neck pain. He is restricted in his future work i.e. unable to lift.”

The medical report of 12 December 2019 suggests that the Complainant would not have been able to continue in his then current role in any event due to his physical restrictions. However, and notably, the respondent was never advised of any restrictions placed upon the Complainant’s return to work and was never advised by the Complainant of any physical restrictions or limitations he was experiencing while performing his role. The respondent was not made privy to the medical report until 04 February 2020 which was long after the events giving rise to the instant Complaint. There was no further communications with the Complainant or his representatives before the filing of the Complaint to the WRC on 15th May 2020.

The Complainant refused to engage in the Respondents Grievance process which was open to him. Although he was given full opportunity to do so, at no time before the filing of his Workplace Relations Complaint Form on 15 May 2020, did the Complainant ever claim or assert that his employment was terminated unfairly because he had issued PIAB proceedings against the Respondent alleging he sustained an injury in the course of his employment. It is submitted that based upon the foregoing, the Complainant’s role was made redundant as the result of a genuine redundancy situation caused by the liquidation of CFGE. The Complainant accepted his redundancy payments and refused to engage in the Respondents grievance process which was open and offered to him to contest the redundancy. As such, the Complainant was not unfairly dismissed, and his complaint should not be upheld.

While it is accepted that a greater degree of consultation is preferably involved in the context of terminations by reason of redundancy, it is submitted that, in this case, the Respondent had considered all reasonable alternatives to termination and that further consultation with the Complainant would not have resulted in any other outcome. The fact of the matter was plain and unavoidable. The loss of the CFGE business meant there was no work remaining. The Complainant also accepted the termination of his employment on the grounds of redundancy by declining to raise a grievance and by accepting the statutory redundancy payment paid to him by the Respondent in the amount of €11,616.00 together with payment for four weeks’ pay in lieu. It is not possible for the Complainant to submit that he did so without prejudice to the fact he was accepting his employment was terminated by reason of redundancy while accepting the statutory payment that only arises by virtue of a redundancy situation as compensation for loss of earnings.  The Complainant expressly refused to engage in the respondent’s grievance process which was open and offered to him. This is additional evidence of his intention to accept the redundancy. Had the Complainant engaged in the Grievance process, as offered by Respondent, any adverse decision on his grievance, if any there was, would have been subject to a multi-level appeals procedure as set forth in the Grievance policy.

The Complainant was offered fair procedures which he declined. It further appears the Complainant secured new employment with his current employer in January 2020 and that the Complainant had medical reasons to accept his redundancy. There also has been no evidence submitted as to when or whether the Complainant was fit to return to work after his medical evaluation on 12th December 2019. The Complainant would not be entitled to back pay for any period he was not available for work due to illness restrictions. As a general principle, an employee who has been unfairly dismissed has a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment and the standard is a high one. The standard required has been clearly defined in numerous decisions. Furthermore, compensable financial loss under the Act “does not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages.”.

In response to the submission of the Complainant around mitigation, the respondent replied that employees alleging unfairly dismissal have a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. The onus is on them to prove diligent efforts to mitigate and the standard is a high one. The complainant must not be allowed to claim that he was fully fit for work and that his financial loss was solely caused by the alleged unfair dismissal, while claiming in the High Court he was required to take a less physically demanding role (at lower compensation) due to physical restrictions and painful sequalae resulting from his injury. As the Supreme Court has recognized, there must be a penalty in the event false evidence is given in an adjudicative proceeding.

Case law cited included: British United Shoe Machinery Co. Ltd v. T J L Clarke [1977] IRLR 297, Kim McNally v Westwood Club Limited 2010 ELR 328, James Hayes v. O’Kelly Bros UD/268/2001, Burke v. Superior Express limited UD 1227/2014, Nigel Coad v. Eurobase Limited (UD 1138/2013); Sheehan v Continental Administration Co Ltd (UD 858/1999) 34, Stephens v. Archaeological Development Services Limited 2010 IEHC 540, Parsons v Iarnrod Eireann [1997] 2 IR 523, Cunningham v Intel Ireland Limited [2013] IEHC 207, Phillip Carrie v Employment Appeals Tribunal and Bus Atha Cliath/Dublin Bus 2008/07749, Henderson v Henderson (1843) 3 Hare 100 , Beverley Morgan v Irish Horse Welfare Trust Limited UD53/2012, WT 13/2012, MN 24/2014, Ciaran Culkin v Sligo County Council [2015] IEHC 46.

The evidence of Ms O’Halloran was that the HR aspect of her role does not take up as  much time and that the main part of her role is in operations and allocating people to their work areas. She said that she knows everyone on the floor and the complainant operated a lathe that often would be idle and that people could see what was happening and the writing was on the wall with regards to the wind turbine work.  Ms O’Halloran said that some people left and some were made redundant and that the complainant was on sick leave during the time that others were made redundant.  Her evidence was that the complainant was not doing very much around the summer holiday break and it was clear that after the Japanese order there would be nothing else for people to do.  She submitted that Mr A was trained in other areas but that the complainant was not and that some of these other areas could take 3 months to become proficient in.  Ms O’Halloran said she did not need to make a written record of the selection criteria as it is in her head and she would know it from her production knowledge and that no other employee made a complaint about redundancy and that employees knew that a genuine redundancy existed.  She confirmed that it was her who made the decision to make the complainant redundant but that she was not there when the complainant was told about the redundancy.  She said that she did not receive the complainant’s email of the 19th December owing to Christmas shutdown and responded when she saw it and suggested to the complainant that they meet but he declined.  Ms O’Halloran said that the complainant had never mentioned to her that Mr A was a comparator, never asked for his job back and never said that he had a job.  It was her evidence that the complainant was friends with the owner of the company where he currently works, that she was not told there were any restrictions when he returned to work after his absence and she received a fitness to return to work cert.  She gave evidence that she would not normally approach an employee who returned to work absent unless there was mention of restrictions in duties. She said that the complainant was not cross trained in other areas to her knowledge.  Her evidence was that they had lost a major customer and labour costs were too high.  She had asked the complainant previously to go to another area to be trained but he refused and she did not look for him to be trained in another area again.  She confirmed that she did not look at his cv to assess if he was skilled in other areas and if he was suitable for any other jobs.

Under cross examination Ms O’Halloran said the redundancies were finance-triggered and that she could not recall when redundancies were decided but it was communicated to employees in March and that she did not communicate with the complainant as the outcome would be the same and he would be made redundant.  Many employees left as they would not have the requisite service to secure redundancy payment.  She said she did not do a matrix to determine if the complainant should be made redundant as she did not believe the complainant was cross trained or suitable for other work or other roles.  She did not carry out a return-to-work interview in 2019 as that would not be the norm.  She confirmed that she did not tell the complainant about the redundancies and that there was no consultation and that she made the decision on the information that she had and knew.  She said that consultation is paramount in an ideal situation and that she did not know why she did not consult and if she could do it again she would possibly consult.

The evidence of Ms Barry was that she used an online calculator to calculate the complainant’s redundancy to be paid to the complainant and that with his annual leave and notice he was paid €16,135.33.  The complainant was earning €25 per hour for a 40 hour week.  Under cross examination Ms Barry confirmed the complainant’s P60 and that the complainant was absent 14th March – 16th July 2019.

At the start of the hearing, the complainant asked the purpose of the stenographer and requested a copy of the stenographer’s transcript.  The respondent replied it was their right to provide a stenographer and that they would send a copy of the transcript to the WRC but that if the complainant wished to have a copy then they would have to pay for same.  The complainant submitted that as a copy of the transcript would be sent to the adjudicator, and in line with normal procedures a copy of such correspondence would be issued to parties; the complainant would receive a copy in that manner.  There was no objection from the respondent and the hearing then proceeded.

The Complainant commenced working for the Respondent on October 10th 2010 and at the date of his dismissal was employed as Lead CNC Lathe Operator. The Complainant’s role involved running the CNC Lathe area. The machinery was used mainly for turning high quality components and parts for the wind turbines, which were produced inhouse. The lathes were very complicated and was very highly skilled work and the Complainant excelled in his role in this regard.  The machine the complainant worked on produced bespoke wind turbine parts ordered by one customer.  The customer, C&F Green Energy Limited was a subsidiary of the respondent. 

When the Complainant was made Redundant, there was only two people in the factory who could run the said lathes; the Complainant, who operated them on the day shift and his colleague, Mr. A, whom the complainant trained, and operated them on the nightshift.  It took approximately 2 years for an operator to be fully trained up and it is not an operation that every operator can perform.

On the 13th of March, 2019, the Complainant was seriously injured at work and was certified unfit to work as a result of his injuries from the 14th of March 2019 to the 16th of July 2019.  The Complainant was very disappointed that on his return to work in July, 2019, no one from Health and Safety, Occupational Health, HR or Management came to speak to him to ask him how he was, to ask him how the accident happened or to ask him if he needed any additional support to enable him to do his job. The Complainant found his return to work difficult due to the nature of his injury and the lack of any support from his employer. However, his colleagues were very good to him and provided him with support and assistance when necessary.  At the end of September 2019, the Complainant’s Solicitor sent a letter to his employer to advise that he was lodging a Claim in the Injuries Board as a result of the injuries he sustained in his accident at work the previous March.  The Complainant continued to work away as normal and remained extremely busy in his job.

On Friday, the 29th of November 2019, the Complainant was called to the office by the Plant Manager, Mr. B. The Complainant had no reason to believe that there was any problem and he thought Mr. B wanted to discuss something in relation to the work he was doing. However, as soon as he entered the Office, Mr. B handed him an envelope and said “you’re gone”. The Complainant  did not understand what he meant by this or what he was taking about and he asked him to explain.  Mr. B informed the Complainant that his employment was being terminated with immediate effect due to Redundancy; and that the respondent would pay him notice in lieu and that his last day of employment with the Respondent would be the 27th of December 2019. 

The Complainant was completely shocked and very upset when he realised what was happening. He could not believe that after many years of very hard work, dedication and loyalty shown to the Respondent, they saw fit to summarily dismiss him in this manner and at Christmas. The Respondent knew the complainant had a young family to support and he was particularly upset not only by the manner in which his employment was being terminated but also, in relation to the timing of it. 

Prior to the meeting with Mr. B, the Complainant was neither aware nor was he concerned that his position might be at risk or that his employer was considering making him redundant. There were no indications that this might be the case from his Supervisor, Managers or anyone with whom he worked.  From the date the Complainant returned to work in July 2019, until this meeting with Mr. B on the 29th of November 2019, he was extremely busy at work. 

The Complainant was well aware that a subsidiary company was the respondent’s main customer and had gone into liquidation and that there were some redundancies as a result. However, the Complainant never had any reason to be concerned for his position as a result of the other company’s liquidation. In the first instance, he worked for the Respondent and not this company. Whilst he did some work for this other company, he was not reliant on them for work and he disputes the Respondents contention that he spent 100% of his time working exclusively for them. The Complainant continued to have plenty of work to do after the other company ceased operating. He had extensive experience on nearly all of the CNCs and he was the only person in the area trained on nearly all of the machines.

The Respondent was also in the process of drawing up plans to make a new smaller turbine for the Irish market, as an alternative to the turbines that the subsidiary had been producing for the Japanese market. Shortly before the meeting with Mr. B on the 29th of November 2019, the Complainant had been told of plans to play a larger role in the R& D of this new type  of wind turbine for the Irish Market. There was also work for ongoing projects to be completed and so the Complainant had no reason to believe that his position would be made redundant. The Complainant was and remains of the view that his experience and his skills were critically important to the Respondent at that time, that his position was not redundant, that he was unfairly dismissed and that his employer dismissed him because he lodged a Claim against them to the Injuries Board. 

The Respondent did not consult with the Complainant at any time in relation to his redundancy or give him any reason to believe he might be made redundant. The first he became aware of it was when Mr. B told him on the 29th of November, 2019, that he was being let go immediately.  In that meeting, Mr. B did not advise the Complainant that he had a right to appeal this decision, that it could be reviewed or discussed, that he should seek independent legal advice in the matter or offer him any comfort at all in relation to his Redundancy. In fact, Mr. B made it very clear to the Complainant that the matter was not up for discussion and that the decision that had been made to make his job redundant, without any consultation with him, was final.  In the circumstances, the Complainant did not believe there was anything he could do in relation to the matter. 

It was submitted that despite what the respondent might suggest regarding the preference for “a greater degree of consultation“, - there was no consultation.  The Respondent did not consult with the Complainant in any way, shape or form with regard to his redundancy or advise him that his job was at risk. The Respondent has not provided one shred of evidence as to the consultation that they say took place with the Complainant nor do they provide any evidence of the “alternatives” they say they considered, all of which are denied by the Complainant.  The complainant at no stage was offered alternative work nor was it suggested he was suitable for alternative work.  Furthermore, the Respondent has not provided any documentary evidence of their thought process in this regard.

Following the dismissal, the complainant submitted a Data Access Request to the Respondent and was furnished with a copy of his entire personnel file and various other documents which the Company held in relation to him.  This paperwork contains absolutely nothing in relation to the Complainant’s redundancy, save for the letter dated the 29th of November 2019 which Mr. B handed to him notifying him that his employment was being terminated. This paperwork contains nothing which would illustrate the Respondents assessment of the complainant’s role, the thought-process in advance of their decision to make him redundant, or any alternatives that were considered to his Redundancy. 

In the event that the Respondent is claiming that this was a genuine Redundancy situation, which the Complainant does not accept, then there is also the matter of the Complainant’s colleague, Mr. A to be considered. As stated above, the Complainant and Mr. A were the only two employees fully trained to run the lathes in his area or work. The Complainant had trained Mr. A on two of them and was in the process of training him on the third lathe.  The Complainant was responsible for all training in the lathe area. The Complainant and Mr. A both worked in the same area and carried out the same work; the Complainant worked the day shift and Mr. A worked the evening shift. A number of days before the Complainant was made redundant, Mr. A told him of his delight at finally securing a pay rise that he has been asking for over a considerable period of time.  The Complainant was very happy for Mr. A, he was of the view that he well deserved the pay rise and he thought no more about it. A few days later, the Complainant was made redundant and Mr. A was retained in his position. The Complainant believes that Mr. A continues to work for the Respondent to date.

If there had been a genuine redundancy situation, and it is the Complainant’s case that it was not such a situation, then the Complainant and Mr. A’s roles ought both to have been at risk.  In this situation, the Respondent ought to have engaged in a fair selection process with fair selection criteria which could be objectively justified and applied in a fair manner between the parties. This would, of necessity, have required significant discussion between the parties and the Respondent. Both parties ought to have been advised that one position was being made redundant and that they were both at risk of Redundancy.  Both parties ought to have been consulted and alternatives proposed and considered. A skills matrix ought to have been drawn up to assess the Complainant’s  and Mr. A’s suitability for the role being retained. Both parties ought to have been given the opportunity to compete for the position being retained.  The Respondent ought to have documented their thought process in dealing with the matter. None of this happened. 

The Complainant respectfully submits that the Respondent summarily terminated his employment because he issued personal injuries proceedings for the serious injury he sustained at work the previous March and that the Respondent attempted to pass it off as a Redundancy, where no such Redundancy existed.  The Complainant was a very dedicated, hard working, loyal and conscientious employee from the date he started working for the Respondent. He had received very positive feedback from his Supervisors and Managers during his time there and he had an unblemished personnel record.  He had plenty of work to do at the time he was made Redundant and his colleague, on the night shift, doing exactly the same job as him, was retained in his role. The Respondent was particularly callous in dismissing the Complainant at Christmas time, and showed a blatant disregard for an employee who had worked very hard and went above and beyond what was required of him in the performance of his job.

The Respondent has made an issue of the fact that the Complainant did not raise any objection in relation to his redundancy until the 20th of December 2021 at which time he sent an e-mail which they state “triggered the Respondents Grievance Procedures…….” With respect, Mr. B told the Complainant in no uncertain terms “you’re gone” and the matter was not up for discussion.  The Complainant did not know he could object to the decision that had been made about him, that he could appeal the decision or query it in any way. It was incumbent on the Respondent to advise the Complainant as to his rights in relation to his Redundancy and in particular, his right to Appeal the decision that had been made about him.  They did not do so.  It was only after the Complainant had the opportunity to take legal advice, in or around the 20th of December, that he became aware as to how the Respondent had breached his rights.  The Complainant’s employment was terminated with effect from the 27th of December 2019.  In the circumstances, sending an e-mail to the Complainant  on the 2nd of January 2020 suggesting  a meeting with him to discuss the matter one full week later, on the 9th of January 2020 was wholly unsatisfactory, disingenuous and showed a complete lack of any understanding or fairness in the matter.

Furthermore, and more importantly, the Company’s Grievance procedure states that

“Each employee has the right to seek redress for Grievances about his/her conditions of employment…..”. 

The Complainant was no longer an employee of the Respondent on the 2nd of January, much less on the 9th of January 2020. At this stage, the Company Grievance procedure was not an appropriate way to deal with the matter.  The suggestion by the Respondent that the Complainant  “expressly refused to engage in the Respondents Grievance process which was open and offered to him“ is entirely disingenuous, particularly in circumstances where the Respondent had theretofore breached the Complainant’s rights to fair procedures by not advising him as to his right of Appeal and had unfairly summarily dismissed him in the meantime.

The Respondent refers to a medical report of a medical physician for the Injuries Board and it appears that they have cherry picked sections of that report to argue that the Complainant would have been unable to carry on in his role in any event due to the physical restrictions caused by his injuries. The Respondent appears to be suggesting that it is of no consequence that he was made redundant because he may not have been capable of remaining in his role in any event and therefore, the manner of his Dismissal is also inconsequential. If it had been the case, which is denied, that the Complainant would not have been fit to continue in his role, then making him Redundant was not the solution to that problem. The Respondent has shown a complete lack of any appreciation or understanding of their obligations towards the Complainant to accommodate him within their employment if this had been the case. They have shown a complete lack of any concern or empathy for the Complainant and it is respectfully submitted that putting this argument forward to justify what is clearly an unfair dismissal, is an appalling way to meet the case that is being made against them or to justify their actions.  

Interestingly, the Respondent has not quoted the section of the medical physician’s report which states in the paragraph entitled “Progress since Accident”

“ Huge improvement in symptoms from neck pain since surgery. Paraesthesia and numbness is completely resolved “

The entire “Redundancy Process” was fundamentally flawed; it did not comply with the well-established principles set down in the case law and in the legislation over many decades in relation to an employer’s obligations towards their employees in a Redundancy situation. It is respectfully submitted that the Respondent ignored all of the obligations placed on it in this regard, that fair procedures were not adhered to and at no stage was the Complainant advised by the Respondent as to his rights.

The Complainant does not dispute the demise of the subsidiary company; however, he was not employed by them, he was at all times employed by the Respondent, C& F Tooling Limited, and it remains a very large organisation to date. There were ample alternatives to his dismissal which ought to have been considered and discussed with the Complainant. Every employer, no matter how small, is legally obliged to consider the alternatives to an employees’ Redundancy, to consult with the employee in this regard and to document that process.  It is common case that large organisations such as the Respondent’s Organisation are under an even greater obligation to consider alternatives to an employees’ redundancy and are better placed to secure alternative roles for such employees, particularly employees with experience such as the Complainant.  The Respondent did not consider or discuss any alternatives with the Complainant and in so doing, breached the Complainant s rights to fair procedures and statutory obligations. In the circumstances, it is the Complainant’s case that his Redundancy was not genuine, that he was unfairly and summarily dismissed including because he had lodged a claim in the Injuries Board against the Respondent approximately 2 months prior to his dismissal and that Mr A had less service than him.

Case law cited included Henry Gwynn-Jones /John Dawson UD 1480/2011, Roche v Richmon Earthworks Ltd UD 329/, A Storeman v A Construction Supplies Company (ADJ-0001516), Tolerance Technologies v Joe Foran (UD/16/50).

The evidence of the complainant was that he had signed a contract when he commenced working with the respondent and that he had experience with a mill and a lathe.  His evidence was that he also trained Mr A in using the machines and that Mr A was more junior to him.  The complainant said he had an accident at work and his solicitor sent a letter of claim around September 2019 and that around two months later in November 2019 he was told by his supervisor Mr B when called in for a meeting that he was gone.  He said that Mr B did not say it maliciously and was apologetic when he said it.  He was shocked as he thought the meeting was about a drawing for work and had no idea what the meeting was about beforehand.  The complainant said it came at a horrible time with Christmas coming up and Santa for his children and he was also in the middle of trying to sell his house and no notice was given to him of this.  The complainant received a letter and responded to it dated 20th December 2019 expressing his unhappiness and the decision was not reconsidered.  The complainant said he got another job in the 2nd week of January 2020.  The complainant said he works at one company since then to date i.e. 125 weeks, with a job similar to the other job at the respondent. He said that he earned €19 per hour for 38 hours per week for about 39 weeks and that then increased to €21 per hour and that he is a full time employee.

Under cross examination the complainant confirmed he was off work with an injury from March till July 2019 albeit there was one week in between that when he returned for a short time as he had been misdiagnosed.  The complainant confirmed that he was had surgery on his spine. He confirmed that he knew that the subsidiary company had gone into liquidation and that there were no wind turbines built but expected some to be built later.  The complainant confirmed that he knew employees had left the company, that he was oiling and cleaning till Summer shut down and there was always work to be done.  The complainant said he knew the liquidator had sourced an order and that there would be no other turbine orders after that order and that there would probably be redundancies.  He described the pain to be 9 out of 10 on his return to work and that this was his new normal and he had to deal with it whatever way he could and that his doctor had given him a fitness to return to work cert.  The complainant agreed he had some knowledge of personnel in the company that he secured employment from and denied that he knew the parts that his new employer produced and said they were generally smaller lathes.  He also interviewed for other companies but choose the current employer.  He told organisations that he had an injury as he wanted to be upfront but did not say he had restrictions regarding weights he could lift.  He did not do a pre-employment medical for his current role.  During a walk about at the current employer he was able to see how heavy the products were and was happy that he could physically do it.  He said he made no complaint regarding the redundancy at the time as he thought he was gone and spent his time looking for another job.  He denied that he knew people’s schedule over Christmas and whether his email would have been read and agreed that his email did not mention Mr A and said this was because Mr A was not let go and the complainant was not offered an appeal.  The complainant said he did not believe he had to tell the respondent he had secured another job.  There were not many machine shop jobs available.  He advised that when going for some other interviews he was told that he would not get the rate of pay that he had with the respondent.

The complainant submits that he was unfairly dismissed, that he was unfairly selected for redundancy and that his employment was terminated because of personal injury proceedings he issued against the respondent and that no other alternative roles were explored.  The respondent submits that the dismissal was not unfair, that the dismissal was because of redundancy and that any financial loss is not attributed to dismissal but attributed to physical restrictions which does not allow the complainant to obtain a higher paying job.

Preliminary Issue:

The respondent submitted that the complainant has parallel proceedings in a High Court claim for personal injuries and financial loss under common law. It was submitted that the complainant is now required to make an election to proceed on the financial loss claim either under the Unfair Dismissal Acts or at common law.

The complainant submitted that should the complaint succeed, and the complainant be awarded compensation then the High Court would be made aware of any such awards.  It was submitted that there is disclosure through discovery in respect of what earnings there are and that it is not unusual for complaints to proceed through, for example, personal injuries and bullying and harassment and double recovery is not permitted.  However, the instant case in front of the WRC is that of an alleged unfair dismissal which differs from the personal injuries case.

It is well established that where there may be a number of claims before the Courts it is not unusual for the facts of the case to overlap but often the statutory regime and matters such as the burden of proof may differ as might the remedies.

Section 15 of the Unfair Dismissals Act sets out that

“15.—(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.

 (2) Where a decision has been made by an adjudication officer in respect of a claim by an employee for redress under this Act the employee shall not be entitled to recover damages at common law for wrongful dismissal in respect of the dismissal concerned.

(3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.

Henderson v Henderson(1843)3 Hare 100, 115 developed the rules preventing duplication of proceedings and that a party should not be twice vexed in the same manner. In Culkin v Sligo Co Council [2015] IEHC 46, where the plaintiff took a case for a personal injury based on the same facts as a previous failed claim of discrimination in the Equality Tribunal; Hogan J in the Court of Appeal clearly set out the importance of identifying if there are “different claims” in the fundamental way.  Havingconsidered all the submissions and evidence I am satisfied that there is a claim before me namely that of unfair dismissal which differs from the personal injuries claim and I am satisfied that the complaint before me may, therefore, proceed.

SubstantiveIssue:

Section 6 of the Act provides

“.—(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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

Under Section 6(3)

“ Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Furthermore, Section 6(4) sets out

“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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(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 was not in dispute that the respondent advised the complainant that his position was made redundant, that the complainant had trained Mr A and had greater service than Mr A and that Mr A was retained and that there had been other redundancies during the year impacting employees working directly on product for the customer that went into liquidation and a subsidiary of the respondent.

In the case of Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) Burns UDD1854 the court accepted that “the Respondent was entitled to restructure its business and reduce its workforce if necessary. In that case the Court accepted that

“the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

It was accepted that there was no matrix, formal or informal, put to the complainant regarding why Mr A was deemed more suitable to be retained and I note the evidence of Ms O’Halloran that the matrix was in her head and she saw no need to present it to the complainant.  In fact Ms O’Halloran did not present anything to the complainant as she issued an instruction to her colleague to advise the complainant that his role was gone with no explanation as to the reason why the complainant was selected.  There was, furthermore, nothing submitted that suggested that the respondent looked for other suitable alternative roles for the complainant in any meaningful manner. 

The EAT in Boucher v Irish Productivity Centre [1994] ELR 205 held with fair selection and procedure:

‘: a) the onus is on the employer to justify the selection of the claimants and each of them for redundancy and b) that in the absence of section 6(3)(b) applying that the dismissals must be considered under section 6(1) and c) that the general redundancy situation in the absence of section 6(3)(b) applying does not deny the individual employee the right to be fairly assessed for selection.’

The respondent accepts that more consultation could have been done and the complainant submits that there was no consultation.  Having reviewed all the evidence, it is clear that there was no consultation or transparent assessment of selection with notably nothing held on the complainant’s file regarding his selection for redundancy, other than the letter advising of redundancy.  This letter further fails to provide the complainant with any mechanism for a review of the decision, fails to give any insight into why the complainant was selected and while I note it mentions “if you have any questions please do not hesitate to contact us…”, there is a notable lack of an appeals process.

The High Court held in Panisi v JVC (Europe) [2011] IEHC 297, that :

‘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 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.

The complainant asserts that the respondent terminated his employment shortly after he initiated proceedings against the respondent regarding an alleged injury.  I note however, that approximately 24 employees working directly for CFGE either left voluntarily or were made redundant as a result of the liquidation of CFGE.  The complainant had been out on certified leave and returned in July and while I note that he issued proceedings against the respondent in September, it was two months later when the complainant was advised that his position was made redundant and I accept it was November when the parts were completed for a final order for CFGE.  I do not uphold the complainant’s allegation that his employment was terminated owing to this issuing proceedings against the respondent. 

Much was made by the respondent that the complainant was opportunistic by writing a letter to the respondent on the 20th December 2019 when the complainant would have been aware of the respondent’s shut down.  This letter was sent 09:36 and there is nothing to suggest that the complainant could have been aware that Ms O’Halloran had left already and did not see the email until after the Christmas break.  After Christmas an offer was made to the complainant to meet to discuss his grievance but I note the complainant’s credible evidence that his employment had terminated at the end of December and as he had been selected for redundancy in November he sought and was successful in securing employment in January.   In all the circumstances and based on all the evidence including the matter in which the complainant had been made redundant without any consultation, noting that the burden of proof rests with the respondent, and there was no transparent selection process and no consideration of alternative work for the complainant, I find that the complainant was unfairly selected for redundancy and the dismissal was unfair.

Considering all the evidence and submissions, I do not consider reinstatement or re-engagement to be a practical option in this case and that compensation is the appropriate redress.  With regards to efforts to mitigate his loss, there is a standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a:

“claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

I note that much, if indeed not all, of of the cross examination of the complainant’s evidence was spent enquiring into the efforts by the complainant to mitigate his loss and whether any injuries which the complainant may have, impacted on his ability to mitigate his loss.  It should be noted that neither parties presented witnesses from any medical physician regarding the complainant’s capability or otherwise to perform work.  The complainant secured employment very quickly albeit on less pay than he had working for the respondent.  The complainant’s evidence was that his salary was higher with the respondent than other organisations might pay.  While the complainant does not appear to have actively sought other employment to secure a higher rate of pay to mitigate his losses, I find nothing to suggest that the complainant remains with his current employer solely because of his physical inability to secure other positions elsewhere.

The complainant’s hourly rate of pay was €25 per hour working 40 hours plus health insurance and pension contribution.  When he secured employment, he was on a rate of €19 for approximately 36 weeks working 38 hours and this hourly rate increased in September 2020 to €21.  While noting that the complainant had enjoyed a higher hourly rate of pay, than perhaps the norm for the industry with the respondent, and provided credible evidence that he needed to establish himself with his new employer before perhaps moving on, the fact remains that the complainant did not actively pursue looking for other employments that might have bridged the gap and helped to mitigate his loss.  Having considered all the evidence and submissions, and noting that Section 19 of the provides the circumstances under which a lump sum might be repaid such as reinstatement or re-engagement which does not arise in this case; I therefore, award the complainant €22,000 and reduce this by 25% for the complainant’s failure to appropriately mitigate his loss and therefore the total award to the complainant is €16,500.  This is in addition to payment already received by way of redundancy.

Having considered all the evidence and submissions I, find the complainant was unfairly dismissed and consider compensation the most appropriate redress and therefore, award the complainant €22,000 and reduce this by 25% for the complainant’s failure to appropriately mitigate his loss and therefore the total award to the complainant is €16,500.  This is in addition to payment already received by way of redundancy.

Redundancy, unfair selection, personal injuries