Complainant

Respondent

Anonymised Parties

Quantity Surveyor

Contracting Firm

Representatives

Barry Crushell Crushell & Co Solicitors/Cillian McGovern BL

Valerie Morrison Peninsula

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-00049592-001

09/04/2022

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

CA-00049592-002

09/04/2022

The Complainant commenced employment with the Company on or about the 1st of January 2016.

He was employed as a Quantity Surveyor.

The Company was acquired during this period by another contracting firm who are engaged in building maintenance and restoration work.

The Complainant is mainly engaged in the restoration work of the Company.

During 2020 like similar enterprises the business contracted very significantly arising from Government public orders that companies close.

The Complainant on or about May 2020 was diagnosed with cancer.

During his period of treatment, the Complainant requested that he be given some work for his mental health. Allowing for the fact that he was on sick leave the Company decided to make an ex-gratia payment to him in addition to paying him holiday pay so far not taken. As of the 26th of May 2021, the record of payment is as follows as detailed in an email from the Company to the Complainant:

With reference to the holidays below I am unsure of the total days you are due for holidays as they are not documented. I assume this at 37 x €169 = €6,253.

Since 03/07/20 [company anonymised] has paid €12,500.

Total Payments €12,500

Holiday Pay €6,253

 ----------

Bal €6,247

The balance of €6,247 was a gift for work on [ project anonymised] etc during the year and to help with

your situation

I hope you can appreciate from 01/06/21 no further payments will be made.

On or about early June 2021 the Respondent and Complainant met to discuss his future. Who asked for this meeting and who asked for what at this meeting is at issue. The Complainant stated that it is clear from the email that the Company had no more work for him and therefore were not able to pay him. He stated that he could see this as the restoration work that he was asked to cost had dramatically decreased. It was agreed that when the Complainant was fit to work, they meet again and finalise his statutory redundancy. That would be of the order of €9000.

The Respondent stated that this meeting occurred at the request of the Complainant and that he was looking to be made redundant. There was a position for him; however, he wanted to leave the Company with a payment.

In June 2021 the Company acknowledge in correspondence to the Complainant that they have received a medical certificate that states that the Complainant would be unfit for work for a period of 4-8 weeks.

The Company on or about the 12th of October 2021 receives a medical certificate that the Complainant is fit to work from the 12th of October 2021 to the 18th of October 2021.

A meeting took place on or about the 19th of October 2021 about finalising the redundancy payment. The Complainant stated that he was taken aback at this meeting as what was agreed would likely happen in June 2021 had fundamentally changed. The Company was factoring in payments that he had received for work done into his statutory redundancy.

The following is a Company record of that meeting:

At our meeting on the 19/10/21 there were two subjects you wanted to discuss. These were

anonymised and your request for (Company anonymized) too make you redundant. I did not make an opening statement but discussed the changes in the Company.

As you are aware Complainant the Company still uses a quantity surveyor when tendering for contracts. We have had to use a QS when you were on sick leave so your job still exists. Your reference to a colleague by formalising her name I find derogatory as she is a highly respected member of staff. You were asked what redundancy did you think your were entitled too if the Company was to make you redundant and you stated €9-€10k. If you wanted redundancy I offered €4k net payment. This is calculated as follows

Redundancy €7,608.00

Notice Pay €2,945.20

Payments made (€6,247.00) – See e-mail dated 21/05/21

 ------------

Net due €4,306.00

You had stated in the meeting that the payments made were for work you carried out on sick leave. You were not working while on sick leave as you were receiving sick pay. I had asked you for advice while on sick leave which was minimal. I asked you to come back to me by the end of the week. No demands were placed on….

The Complainant believes that this meeting was called to force him out of the Company and to accept €4000 instead of his entitlement. At the meeting he was informed that he would have to bring in business allowing for the pressures on the Company.

When the Complainant rejected this offer, the Company requested the Complainant to provide them with a sick certificate or a date when he would be returning to work. As no engagement or contact was made with the Company a disciplinary process commenced and in December 2021 the Complainant received a warning:

On the 21st of December 2021 the following medical cert states:

To whom it concerns,

This gentleman was diagnosed with colon CA approximately one year ago.

He has had chemotherapy, radiation therapy, surgery and most recently reversal of his ileostomy.

There were post operative complications and his post operative recovery has been delayed.

He is currently unfit for work and it is difficult to say when he will be fit but certainly for the next four to

eight weeks, he will not.

His condition remains under review.

Yours sincerely

Over a period of weeks, the Company stated that it attempted to engage with the Complainant; however, he failed to engage with them. On or about the 15th March 2022 he was dismissed for Gross Misconduct for failing to provide medical certificates and engage with the Company.

The Complainant stated that he had done work for the Respondent when he was recovering from his cancer treatment. He asked to do some work so that he could keep his mind off his illness. He appreciated the payment received of €500 a week. This comprised of holiday pay that he had accrued and then a top up of an ex-gratia payment for work that he was doing for the Company. He was on sick leave so the Company made that payment as a gift to him. He would work for the Company for about 1.5 days and that related to tenders. He received calls and requests from work colleagues during this time that he was happy to receive.

It became evident during the second half of 2021 that his side of the business that was involved in tendering for restoration work for public bodies such as hospitals was decreasing very significantly.

The meeting that was held with him in June 2021 was to inform him that the Company would not be paying him as they had no work to give him. He accepted that his work had diminished and was told that he would be made redundant. He saw that as reasonable in the circumstances. As he was still sick the Company stated that they would not make him redundant. However, when he was fit to return to work, they would then begin the process.

Based on a medical certificate dated June 2021 he was likely to be out of work for another 2 months.

He was certified fit to return to work in October 2021 and that was when the 2nd meeting took place.

That was an entirely different meeting. He was told that his entitlement under redundancy would be €4k where previously he was told that it would be €9k. The alternative was that he would return to work where his role would change, and he would have to bring in new business to contribute to his salary costs.

He believed that he was being presented with Hobsons choice. In fact, what he was being told accept €4k as his old job is gone and you will have to step up to the bar and be a salesperson as well as a quantity surveyor. He had brought in business previously but that was not a core part of his job. He was glad to use his contacts to bring business to the Company. However, what was now being tabled was a totally different role. He was being told accept this amount of money or face being put under huge pressure if you return to work.

The process that began soon after was a sham process. The Company knew the Complainant was not a salesperson. They knew he was recovering from colonic cancer. They knew that he shouldn’t be put under stress and pressure while recovering from this serious illness. They knew that he had done work for them while out sick and then to factor in the previous payment of about €6000 which was meant to be a gift when he was recovering from cancer into the statutory redundancy was shameful.

The Respondent stated that on or about early June 2021 the Complainant sought a meeting with him requesting that he be made redundant. He met him in October 2021 and made him an offer having regard to the payments that he already had made to him. That meeting did not go well. While he did say that changes would be required that is a normal part of managing a business. He would require him to help generate new business; however, the core element of his work would continue to be tendering and costing of projects. The Complainant was fit to return to work and there was work for him. During his absence from work the Company had used the services of an external quantity surveyor and continued to do so. The company wrote to the Complainant after he failed to engage with them and progressively and fairly sanctioned him because he failed to engage with them or tell the Company when he would be returning to work. Eventually they had no alternative but to dismiss him.

The Complainant had initiated the conversation about redundancy not the Company. The orders for restoration work did decline for period; mainly arising from lockdown. However, the business began to recover and there was quantity surveying required to be completed. There was role for the Complainant. He decided that he wanted redundancy and only redundancy would he accept.

The disciplinary process was not a sham process. It was genuine and clearly gave the Complainant every opportunity to improve.

The Company had experienced very significant cost pressures and despite those pressures had given the Complainant €500 per week. It is a company that has conducted its affairs in an honourable and fair manner.

The Company would not expect the Complainant to bring in business to pay for his own salary, that statement is a gross exaggeration.

There are two very polar explanations set out by the parties to explain what has occurred in this case.

The facts do show that what was described as a gift and ex-gratia payment when the Complainant was recovering from cancer and voluntarily doing work for the Company, became a payment reckonable for a statutory redundancy payment.

The fact is that the Complainant’s role has not been replaced and is contracted out on a need basis.

The facts do show that discussions did take place relating to redundancy. I find the account of the Complainant more credible and consistent with the emails opened at the hearing. In June 2021 the Company did say that they would no longer be able to pay him. That is consistent with the fact that tendering work for restoration projects had diminished. It is more probable at that time that this discussion was initiated by the Company. While the Company paid the Complainant €500 per week that included accrued holiday payment. The balance of about €250 per week related to voluntary work the Complainant wanted to complete to keep his mind off his very significant challenge of over coming cancer. That payment was classed as gift. The credibility of a Company that then takes that amount into account when calculating statutory redundancy is diminished. A gift cannot be described as so and then becomes reckonable in calculating statutory entitlements.

The Complainant was sacked under the guise of not engaging in a shambolic disciplinary process. He was presented with Hobson’s choice. It was a take it or leave it , which was take €4k or you take this role which you can’t succeed in. That is no choice. The actions of the company thereafter were poisoned as they were not genuine. They were designed to push the Complainant out of the Company.

Section 6(7) of the Unfair Dismissal’s Act as amended:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

On balance having regard to the factual matrix the behaviour of the employer is unreasonable .

The facts of this case are that the employer contrived a disciplinary process to justify a dismissal based on a Hobsons choice of take €4k redundancy payment or this new expanded role where you will have to bring in new business and do your role as a quantity surveyor as well. This occurred when the Complainant was recovering from colonic cancer. I find the Respondent’s conduct unreasonable.

The Complainant is seeking compensation of about a year’s salary. However, the facts show that he continued to need time to recover from his serious illness. The legislation provides for up to 2 years loss of earnings. The Complainant acknowledged that his role had effectively been diminished arising from a decline in business. There are a number of factors to address in determining redress.

Section 7(2) of the Act states that:

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

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

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

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

The conduct of the employer has been less than generous. The employer decided to pursue a strategy to push the employee out of the business so that they would terminate the contract by paying €4k or terminating the contract. The job had been made redundant. It has not been replaced and the work of quantity surveying is outsourced. The disciplinary process that was initiated cannot be viewed in isolation. The factual matrix on balance shows that the role had in fact been eliminated. The disciplinary process was not fair, it was predetermined to give rise to one outcome and that was dismissal. It had the appearance of procedural correctness; however, it was a box tick exercise. In determining financial loss, I must consider how the conduct of the employer and employee contributed to the loss.

And 7(3) provides that:

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

The conduct of the employer would have had an impact on the capacity of the Complainant to seek an alternative role as he was recovering from cancer. As I have determined that the employee was unfairly dismissed, I must determine what was a reasonable period to find another role having regard to the circumstances of this case.

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably.

I assess financial loss to be 9 months having regard to the time required to seek an alternative role and loss of statutory rights. I reduce this amount to 6 months for the failure of the Complainant to engage with the Company; albeit the disciplinary process appears to be predetermined and a flawed process. I assess financial loss to be €18,000, which includes his right to compensation for loss of the rights of the employee under the Redundancy Payments Act 1967 as amended and reducing the loss having regard to a period when the Complainant was unfit to work arising from his cancer treatment. The Complainant earned €39,000 per annum.

The trust and confidence between the parties is clearly broken down and for this reason reinstatement or reengagement are not appropriate remedies.

The employee was unfairly dismissed on or about the 15th of March 2022. The complaint is well founded.

The facts of this case are that the employer contrived a disciplinary process based on a failure to return to work to a role utterly changed and when the Complainant’s old job had been eliminated and outsourced to avoid paying the correct statutory entitlements. This process was established to justify a dismissal based on a Hobsons choice of a take it or leave it, of a €4k redundancy payment, a fraction of his statutory entitlement or take up a new role in the Company which he was unlikely to succeed in. This occurred when the Complainant was recovering from colonic cancer. I find that the Complainant was unfairly dismissed.

I order that the Respondent to pay the Complainant €18,000 in compensation arising from his unfair dismissal.

Unfair Dismissal