Complainant

Respondent

Parties

James  Watt

Ryan Investments Ltd

Representatives

  Self

Sarah Daly BL instructed by Michael Brennan

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-00050847-001

25/05/2022

A hearing was held in this matter on the 20th of December 2022 in Lansdowne House.

Sarah Daly BL and Michael Brennan attended on behalf of the Respondent. The Respondent made oral and written submissions.

Mr James Watt attended in person and gave evidence under affirmation and made written submissions.

The following key facts in this matter were agreed by the parties from the outset.

1.       The Complainant commenced employment with the Respondent on 30th of September 2004.

2.       The Complainant was paid €2995 per month before tax and other deductions.

3.       The Complainant was dismissed from his job on 31st of March 2022.

4.       The Complainant’s dismissal was in contravention of the Unfair Dismissals Act.

Complainant alleges that he was subjected to ongoing bullying by a colleague. He had raised this person’s conduct on a number of occasions but was told that nothing would come of his concerns unless he raised the matter formally. He lodged a formal grievance on the 23rd of March 2022.

On the 31st of March 2022 the Respondent’s HR Rep asked to speak to the Complainant. The Complainant assumed to this was to do with his bullying complaint. Instead he was informed that he and the company were parting ways and that he was being made redundant.

The Respondent indicated that they would negotiate and agreed exit payment but later restricted their payment to statutory redundancy.

The Complainant worked as a Garage Supervisor. He was one of 6 Garage Supervisors, two of whom had more service with the Company than the Complainant and three of whom had less. The Complainant was the only Garage Supervisor made redundant.

The Complainant says he understands that when a company wants you gone then that is usually the end of the matter. However he is of the view that they should have tried to come to some sort of agreement with him. Instead they just paid him the statutory redundancy and were done with him.

I outlined the different forms of redress available under the act. The Complainant was of the view that neither reinstatement nor reengagement were feasible due to the actions of the Respondent. I then moved on to considering a potential monetary award.

Quantum

The Complainant submitted documentation regarding his loss. In the hearing he outlined that he had done this for information purposes only and was clear that he had limited knowledge of the ins and outs of the act and how Unfair Dismissal awards are calculated.

The Complainant was out of work for 5 months. During these 5 months the Complainant received €1903 per month in social protection benefits. He proactively sought work during this time and applied for various driver roles but was unsuccessful. Ultimately he was hired by Dublin Bus but they had quite a long hiring/onboarding process involve driving assessments and other steps.

The Complainant’s salary in Dublin Bus is roughly comparable with his former salary. He was at a loss for the first number of training weeks where he was paid for 8 weeks at a reduced pay rate of €51 less than his pay with the respondent.

The Complainant was very reliant on his company car and had to purchase a car himself following his dismissal. It cost approximately €16,000.  

The Respondent submits that the matter ultimately concerns a technical breach in the redundancy procedures followed in the Complainant’s case. The Respondent submits that the matter concerned a genuine redundancy and that they are in a position to provide evidence to challenge Mr Watts assertions about how he has been treated.

In the circumstances I was of the view that this was not necessary and the matter could be limited to quantum.

The Respondent submits that Mr Watt was 21 weeks without employment, a period of approximately 5 months. He then secured alternative employment which had a comparable salary to his previous role.

The Respondent submits that the first 8 weeks of this period should be discounted because of these were paid in lieu of notice. This leaves a period of 13 weeks of loss.

The Respondent notes that the Complainant was in training for the first 8 weeks of his new job and received a slightly lower salary, at a loss of €51 a week.

The Respondent therefore calculates the Complainant’s total loss for the period as €9392.95

The Respondent refers to the statutory redundancy payment paid to the Complainant.

If one is to consider this payment, €21,621, there is no loss arising from the dismissal.

The Respondent submits that as the Complainant will have been unfairly dismissed rather than made redundant upon the issuing of this decision, they will entitled at that point to seek to recoup of the above sum via circuit court proceedings from the Complainant as he will have had no entitlement to it.

I canvassed the Respondent’s view of the decisions of my colleague Kevin Bainham regarding specifically the issue of financial loss and redundancy payments under the Unfair Dismissals Act. In particular the Respondent’s barrister made oral submissions regarding Murray v Sherry Garden Rooms Limited, ADJ-00028766.

The Respondent’s barrister submitted that the approach taken in the above case was not correct. The act refers to any financial loss attributable to the dismissal. As a result of this dismissal the Complainant received €21,621. The redundancy payment is inherently connected to the dismissal.

Ultimately this matter relates to financial loss and there is no financial loss. If the Complainant had stayed in the Respondent’s employment he would be worse off financially.

The Complainant was somewhat uneasy as to how this case progressed at the hearing. The Complainant felt that he was treated appalling by his employer of over 17 years. On the 31st of March 2022 he was suddenly faced with being dismissed in unfair and unlawful circumstances. He had a family to provide for and a mortgage to pay. His dismissal took place the day before his child’s first holy communion. This dismissal had significant impact on his family life and was a cause of huge stress.

Instead of the hearing focusing on these matters it became restricted to quantifying the loss resulting from the unfair dismissal. This was because the Respondent had conceded that it had acted in contravention of the Act, as such I took the view that the facts surrounding the dismissal were no longer before me as Adjudication Officer. 

I note that the Respondent’s position is that this was a genuine redundancy and they only violated the Complainant’s rights under the act in a procedural manner.

I would point out that regardless of the context, dismissing an employee of over 17 years service in contravention of his rights under the Unfair Dismissals Act, is not acceptable.  

Financial Loss

Section 7(c) of the Unfair Dismissals Act outlines that as an alternative to reinstatement or reengagement the I can award compensation to the Complainant, if the employee incurred any financial loss attributable to the dismissal.

The Respondent’s view is that the Complainant has no financial loss attributable to the dismissal and as such I should make either award a nominal or nil award in this case.

The legislation provides an extremely clear definition of what is financial loss. “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;

From the above it is clear that income and accrued statutory redundancy rights are different elements of financial loss. The Complainant’s case is a very good illustration of why this makes sense. The Complainant had 17 years of service with the Respondent, he now has approximately 6 months service with his new employer. If this new employer experienced a downturn in business or decided they needed to restructure, and the Complainant was made redundant he would have absolutely no entitlement to a statutory redundancy payment. He has lost an entitlement, derived from long service with the Respondent, which would provide a degree of financial security in the face of future economic changes. This is a financial loss separate and distinct to him having been out of work for 5 months. 

It is clear to me that the act envisages redress for both elements of financial loss, actual/prospective loss of income and the value of any loss or diminution of statutory redundancy rights.

As the Respondent has already paid the Complainant his full statutory redundancy entitlement I do not need to examine whether a payment needs to be made the Complainant in this case relating to that element of loss. However, for the avoidance of doubt and in reference to the Respondent’s repeated threats that they might seek repayment of this sum, I feel I must state clearly that if the Respondent had not already paid the Complainant his  statutory redundancy entitlements I would have been obliged to consider awarding a payment to compensate him for that element of financial loss. 

I must now consider what payment there is owing to the Complainant for any actual loss and any estimated prospective loss of income attributable to the dismissal.

The Complainant submits that he is entitled to €11581 which is a combination of his salary for 5 months (minus social welfare payments), the holiday pay he would have received during those months and the 8 weeks salary reduction he had experienced when he started the new job.

The Complainant also raised the loss of his company car which required him to purchase a new one at a cost of €16,000.

The Respondent submitted that the Complainant is wrong in counting holiday pay as an additional part of the above loss. I agree, holiday pay is not paid on top of an employee’s existing salary but in lieu of it while they’re on leave.

The Respondent also submitted that the Complainant’s period of loss is reduced by 8 weeks because of his payment in lieu of notice. I agree with the Respondent in this also.

With regard to the above legislation, I am not convinced that the loss of a company car ought to be considered financial loss.

I note that the Complainant has himself deducted the social welfare payments he received from his own figures regarding financial loss. However Section 7 (2)A of the Unfair Dismissals Act requires me to disregard these payments and not deduct them from his award.

On review of the submissions made by both parties in this regard I believe the Respondent has calculated the Complainant’s financial loss, arising from loss of income, accurately. That is his loss of pay for 13 weeks and his reduced pay for a further 8 weeks, totalling €9392.95.

I determine that pursuant to section 8 of the Unfair Dismissals Act 1977 as amended the dismissal is an unfair dismissal.

I determine that compensation is the appropriate award.

I direct the Respondent to pay Complainant €9393.

Financial Loss