Complainant

Respondent

Parties

Nigel  Harris

Ronan Blanchfield Environmental Services Ltd

Representatives

Sentric Business Solutions

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-00042999-001

11/03/2021

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

CA-00042999-002

11/03/2021

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

CA-00042999-003

11/03/2021

The complainant commenced working for the respondent on 31 July 2017 as a general operator. At the time of his layoff he was working a 39-hour week, earning €15 per hour. It is the complainant’s case that he was unfairly dismissed from employment without notice and without a redundancy payment following layoff on 11 September 2020. The respondent disputes that the complainant was dismissed, either unfairly or by reason of redundancy. It is the respondent’s case that the complainant was placed on temporary layoff on 11 September 2020 and that the position of general operator remains open.

Evidence of the Complainant:

Preliminary Issue: Time Limits

The complainant waited 6 months before presenting a complaint to the Workplace Relations Commission in the hope he would be called back for work before the time limit for presenting a complaint elapsed. He did not want to create ill-will with the respondent. The complaint was not presented within 6 months of the 11 September 2020 as the complainant had difficulty submitting the online form within the 6-month period. The complainant presented the form to the Workplace Relations Commission on 11 March 2021.

Substantive Issues

The complainant was required to absent himself from work in August 2020 for a short period due to a work colleague testing positive for Covid-19. He sought payment from the company for the second week of that absence. On 7 September 2020 a verbal altercation took place between the complainant and a senior finance manager regarding the payment. Although the complainant was paid for the absence, the complainant contends that this verbal altercation may have been a catalyst for his lay-off from work on 11 September 2020 and ultimately his dismissal from employment.

On 8 September 2020, RB met with the complainant and advised him that he would be paid for the absence. The complainant submitted that RB then told him that the company would have to temporarily lay him off with effect from 11 September 2020 due to a decline in business. The complainant explained that he had annual leave booked for the next two weeks and had a further 4 weeks of annual leave accrued and would prefer to take his annual leave instead of being laid off. RB stated there was no need to do that as he expected work to resume shortly. The complainant stated that he received 6 weeks’ pay in lieu of annual leave in his wages the following week.

On 24 September 2020 the complainant emailed Catherine Blanchfield (“CB”) for written confirmation of the lay-off as he required this confirmation for social welfare. He did not receive a response. On 22 October 2020 CB emailed the complainant regarding money the complainant owed the company concerning another matter. The complainant responded to the query and in that email, he again requested written confirmation of the lay-off. CB replied stating that she needed to discuss this with RB, however, RB was on leave. The complainant received no answer to his request thereafter.

The complainant met RB at a local club on three occasions in the coming months and on each occasion the complainant asked RB if there was any prospect of returning to work. On one occasion RB stated he didn’t have time to discuss the matter. On another occasion, RB replied that he would ring the complainant if any work came up. The complainant made no further contact with the respondent in the hope the respondent would be in contact and to preserve the relationship he had with the respondent. When the complainant had received no contact from the respondent after 6 months, the complainant submitted a complaint to the Workplace Relations Commission on 11 March 2021.  The complainant opened an email received from RB on 7 May 2021. In this email RB confirmed that the respondent would pay the complainant the redundancy payment due to him. Attached to the email was a redundancy payment calculated using the welfare.ie website. It gave a date of notice of termination as 8 September 2020 and a termination date of 11 September 2020.

On 17 September 2021 the complainant received a call from BC (a HR Consultant engaged by the respondent) to mediate on the matter on behalf of the company. As the complainant was at a funeral, he was not able to engage in that conversation. On 29 September 2021 BC contacted the complainant again to see if the complaint could be resolved. The complainant advised BC that he did not want to deal with him, and his preference was for the matter to be heard by the Workplace Relations Commission. Further contact was made by BC in 2022 to ascertain if the complainant wished to resolve the matter. The complainant again declined.

The complainant confirmed that he did not apply for any jobs from September to March 2021 as he believed he may have been still employed. After he submitted his complaint to the Workplace Relations Commission on 11 March 2021, he looked at advertised vacancies, but as none suited his requirements in terms of proximity to home, he did not apply for any of these vacancies.

The complainant was offered part-time employment in October 2021 on a rate of €12 per hour. While the hours of work may vary depending on weather conditions, the complainant is guaranteed payment for 25 hours per week. The complainant described an amicable relationship with the respondent. He stated that he would have had no difficulty accepting his position being made redundant.

In cross-examination, the complainant accepted that at no time did BC represent himself as a mediator of the Workplace Relations Commission. The complainant agreed that he initially misunderstood the capacity that BC had contacted in him. However, his preference remained thereafter that his complaint be adjudicated before the Workplace Relations Commission.

The complainant confirmed that he had a small farm but that it was loss making and he was not in receipt of any income from that work. While he works on his farm part-time, it does not impact on his availability for full-time work. The complainant stated that he is not accustomed to applying for jobs and that he had not applied for a job since 1980.  The complainant accepted that, given he was not a craft worker, he was precluded from working in hospitals during Covid-19. The complainant also accepted that there was no sick pay scheme in the company and that the initial non-payment of the second week of absence was due to this fact.

The complainant confirmed that the only reason he submitted a complaint to the Workplace Relations Commission was because he believed if he did not do so within 6 months of his lay-off, that his complaints would be out of time before the Workplace Relations Commission.

Before taking the respondent through his evidence, the representative for the respondent highlighted the following in the respondent’s written submission.

Written submission: Preliminary Issue:

All the complaints have been lodged outside of the 6-month time-limit and difficulty submitting a form online does not constitute reasonable cause for an extension of this time-limit.

Written Submission: Substantive Issues

The employee was placed on temporary lay-off on 11 September 2020 due to Covid-19 restrictions and the state emergency measures restricted redundancy claims and all terminations of employment during this time. The complainant presented a complaint to the Workplace Relations Commission on 11 March 2021 while on temporary lay-off. The respondent could not engage in any termination discussions or fill or close the position until 20 September 2021. After this time the company sought to resolve the matter with the complainant by offering to close the position and pay him redundancy pay. Further offers of mediation were refused.

The respondent did not make the position of general operator redundant, and the position remains open. The verbal altercation with a manager in September 2020 was not what prompted the complainant’s lay-off but rather a downturn in business due to Covid-19. The complainant’s claim for a redundancy payment arising from his lay-off on 11 September 2020 is misconceived. The respondent subsequently became aware that the complainant secured alternative employment in October 2021 and in doing so he resigned his position with the company.

Evidence of Mr Ronan Blanchfield:

The company conducts work in residential and other building developments and carries out a significant amount of work for the HSE within hospitals. The respondent employed circa 33 employees in 2020. Residential and other site work ceased (other than one project in Maynooth which was nearing completion). All work in the hospitals continued in 2020, however, only craft personnel were permitted into hospitals during this time as they were deemed critical workers. The complainant was the only general operator employed by the respondent. His role included truck driving/deliveries, labouring on sites and a minimal amount of store work (less than 2 days per month).

The complainant was placed on temporary lay-off effective 11 September 2020 due to the impact of Covid-19 on the business. Only one other employee (in purchasing) was laid off and subsequently made redundant. The need to lay the complainant off arose because he was not permitted into hospitals; residential and other developments temporarily ceased; and suppliers could make deliveries to the various sites. An existing Director of the company took over the purchasing work (of the other employee laid off) and the store duties (which the complainant did).  The respondent did not take on any temporary workers at this time. There were no other roles or work available for the complainant. The respondent denied that the matter relating to the complainant’s payment while absent was the reason for his selection for lay-off.

The respondent stated that it was a member of the finance team that paid the complainant 6 weeks’ pay in lieu of annual leave at the time of his lay-off. This was not something that the respondent had requested or was aware of.

Turnover remained the same in 2020 and early 2021 as what revenue was lost in residential and commercial was offset by an increase in hospital work. Business then increased considerably in 2021. The company now employs circa 40 employees. The role of general operator is still open, and the complainant is not entitled to a redundancy payment.

The respondent recalls the complainant asking him at the local club if there was work available. He does not recall the date of that conversation. He told the complainant there was no work but would not discuss the matter further given they were at the club. The respondent does not recall been asked for confirmation in writing that the complainant was on lay-off.

The complainant was not dismissed by the company. Rather, the complainant lodged complaints with the Workplace Relations Commission in March 2021 when he was on lay-off. When the respondent received the Workplace Relations Commission complaint notification, he sought to pay the complainant a redundancy payment to resolve the matter and so he could fill the position. The respondent entered the date of dismissal as 11 September 2020 in the calculation but added that this was in hindsight a generous thing to do as the complainant had not in fact been dismissed on that date.

There was a need for a general operator when business resumed as normal in 2021, but because the complainant had presented a case to the Workplace Relations Commission, the respondent decided not to take him back. The respondent felt that the complainant had made up his mind that he did not want to be part of the company anymore when he made a complaint to the Workplace Relations Commission.

CA-00042999-001

Section 8(2)(a) of the Unfair Dismissals Acts 1977 - 2015 provides:

“A claim for redress under this Act shall be initiated by giving a notice in writing . . .  — (a) within the period of 6 months beginning on the date of the relevant dismissal . . . .”

Section 1(b) of the Unfair Dismissals Acts 1977-2015 defines the date of dismissal as including:

“(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates— (i) the earliest date that would be in compliance with the provisions of the contract of employment, (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 . . . .”

Section 4 of the Minimum Notice and Terms of Employment Information Act 1973 provides:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks . . . .”

The complainant submits he was given notice on 8 September 2020 and dismissed on 11 September 2020. These dates were confirmed to the complainant by the respondent in an email dated 7 May 2021. The complainant was employed by the respondent on 31 July 2017. Therefore he was entitled to 3 weeks’ notice as required under s 4(2)(b) of the Minimum Notice and Terms of Employment Information Act 1973.

The Unfair Dismissals Acts 1977-2015 deems the date of dismissal to be the date on which notice, had it been properly given in accordance with provisions of the Minimum Notice & Terms of Employment Act 1973, would have expired. Therefore the date of dismissal for the purposes of the Unfair Dismissals Acts 1977-2015 in relation to this complaint is 29 September 2020. The complainant presented his complaint to the Workplace Relations Commission 11 March 2021. Accordingly, this complaint was presented to the Workplace Relations Commission within the time limit prescribed by s 8(2)(a) of the Unfair Dismissals Acts 1977-2015.

Section 6(1) of the Unfair Dismissals Acts 1977-2015 provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(7) of the Unfair Dismissals Acts 1977-2015 provides that in determining if a dismissal is an unfair dismissal, regard may be had to the: (a) reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

The complainant harboured concerns that his lay-off from employment on 11 September 2020 was prompted following a verbal altercation with a senior manager. The complainant believed that he may have been dismissed on this date.  I find that it was reasonable for the complainant to form this view. It is common case that there was no mention of lay-off prior to that verbal altercation on 7 September 2020. The following day the complainant was laid off. The complainant’s offer to take annual leave in lieu of being laid off was declined and the complainant was paid in lieu of all annual leave accrued without requesting same. The complainant sought written clarification of his lay-off on two occasions (albeit for the purposes of social welfare) but received no response. It is common case that the complainant also asked RB on at least one occasion if there was any prospect of returning to work. Although this question was asked while both were at a local club, there was nothing precluding the respondent phoning the complainant thereafter to reassure the complainant that he remained in the employ of the respondent. Such was the complainant’s concern and confusion as to his employment status that he presented a complaint to the Workplace Relations Commission, electing both the Unfair Dismissals and the Redundancy Payments Acts. I accept that the complainant submitted these complaints out of concern that he would have no statutory remedy if it did transpire that he was in fact dismissed or his role was redundant, especially as his requests for clarification went unanswered. The clarification sought did eventually come by way of email on 7 May 2021 when the respondent confirmed that the complainant was dismissed on 11 September 2020. The respondent stated in evidence that he decided not to take the complainant back when the employee presented a complaint to the Workplace Relations Commission and that the offer of a redundancy payment was only made to compromise the complaint. I find that the respondent dismissed the complainant on 11 September 2020 and that at that time he had no intention of reengaging the complainant. I find that there were no substantial grounds justifying the dismissal on this date and that there was a complete absence of fair procedure in effecting the dismissal.

Section 7 of the Unfair Dismissals Acts 1977-2015 provides that 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 the Adjudication Officer considers appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances.

I find that compensation is the appropriate remedy in the circumstances of this case. The complainant was earning €585 weekly at the time of dismissal. The complainant was offered part-time employment in October 2021 on a rate of €12 per hour. While the hours of work may vary depending on weather conditions, the complainant is guaranteed payment for 25 hours per week.

Section 7(2)(c) of the Acts provides:

 “. . . in determining the amount of compensation payable regard shall be had to —the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss . . . .”

The complainant confirmed that he did not apply for any jobs from September 2020 to March 2021. After he submitted his complaint to the Workplace Relations Commission on 11 March 2021, he looked at vacancies and advertisements, but as none suited his requirements in terms of proximity to home, he did not apply for any of these vacancies. The complainant has an obligation to mitigate his loss which he did not discharge. Furthermore, the complainant stated that he is not accustomed to applying for jobs which may also impact on his efforts to mitigate his future loss. Accordingly, I have reduced the compensation awarded by 25%.

CA-00042999-002

Section 24 of the Redundancy Payments Act 1967 (as amended) provides that a claim for a redundancy payment must be presented to the Workplace Relations Commission within 12 months of the date of dismissal. The employee lodged his complaint under this legislation on 11 March 2021. This complaint is in time.

I find that the complainant’s role was not redundant and the circumstances around the ending of his employment are addressed via the Unfair Dismissals Act 1977-2015.

CA-00042999-003

Section 4 of the Minimum Notice and Terms of Employment Information Act 1973 provides:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks . . . .”

Section 12 (1) of the Minimum Notice and Terms of Employment Act 1973 as amended provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”.

The complainant had more than 3 years’ service and accordingly is entitled to 3 weeks’ notice.

CA-00042999-001

I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant compensation of €26,696.

CA-00042999-002

I decide that this complaint is not well-founded as the complainant was unfairly dismissed and an award is made under the Unfair Dismissals Act 1977 - 2015.

CA-00042999-003

I decide that this complaint is well-founded, and the respondent shall pay the complainant the equivalent of 3 weeks’ pay (€585 x 3) = €1,755.

Redundancy. Unfair Dismissal. Dismissal in dispute. Minimum Notice.