Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

James Nerney BL instructed by Niall MacCarthy Gaffney Halligan & Co Solicitors.

 Ananta Kaur  IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00044338-002

25/05/2021

The worker commenced employment with the employer as a facilities executive on 1st January 2015 having transferred under the Transfer of Undertakings from her previous employer on that date. The worker’s employment commenced with the previous employer on the 7th February 1995.  She was paid €751 per week.  She was made redundant on the 30th November 2020. She is disputing the redundancy under the Industrial Relations Act, 1969 and claims that she was unfairly dismissed contrary to the terms of the Unfair Dismissals Act 1997

Preliminary Jurisdictional Issue raised by the Employer’s representative.

A claim was submitted by the employee that, under the Unfair Dismissals legislation, the Redundancy procedures were unfair and incorrect, and under the Industrial Relations claim that she was purportedly made redundant but the procedure used was unfair and incorrect. It is a well accepted legal principle that an employer cannot be vexed twice for the same set of facts, and indeed Section 101 (4) of the Employment Equality Acts, specifically precludes the worker from pursuing a claim for dismissal under both the Unfair Dismissals Acts and the Employment Equality Acts.

4A) (a)” Where an employee refers—

(i) a complaint under section 77, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the said complaint shall be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977”

While it is accepted that the employee’s claim in respect of her alleged unfair dismissal has been lodged under the Industrial Relations Acts, it is submitted that the same principle ought to be applied in this instance.

The Labour Court in A School v A Worker the Court stated:

“It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than on head of liability under the Acts”

It does seem as though the complaints being raised under the Industrial Relations Act are indistinguishable to those being raised under the case made under the Unfair Dismissals Act, and, as such, should be disregarded.  The employer ought not be vexed twice by the same complaint and therefore without prejudice to its substantive position that the Worker has been fairly selected for redundancy, it is submitted that the worker must nonetheless elect which piece of legislation she wishes to pursue.

Substantive Dispute

The background to this claim relates to a restructure of the employer’s business in Ireland and the UK. The restructure resulted in the elimination of 1 position in the UK and a reduction in hours for the one position in Ireland from 4 days to 2 days per week. The reason for the hour’s reduction was owing to the reduction in client demand at the office location in Dublin, because of this, the worker was given notice that her role was at risk of redundancy on 1st October 2020.

On October 29th, 2020, the worker was informed, after a consultation process which commenced on 1st October 2020, that her role was being made redundant. The redundancy process followed the employer’s redundancy policy.

The worker’s employment was terminated by reason of redundancy on 30th November 2020. She was paid statutory redundancy. The employer submitted that the dismissal was by reason of genuine redundancy. She was notified in writing that her role was ‘at risk’. She was afforded the right to representation in line with the employer’s policy and was afforded the right to appeal her redundancy. Dismissal on grounds of redundancy is not an unfair dismissal.

Preliminary Issue

The representative on behalf of the worker submitted that in circumstances where the jurisdiction of the WRC is provided for and limited by statute, that in the absence of an express statutory restriction or prohibition on the worker bringing a claim under both the Unfair Dismissals Act, 1977 and the Industrial Relations Act, 1969, the Worker is entitled to bring both complaints.  It was submitted that the decision of the High Court in Carey v Independent Newspapers (Ireland) Ltd [2004] 3 IR 52 at paragraph 122 Gilligan J. stated:

“Accordingly, while the plaintiff is entitled to succeed in her claim as against the defendants under a number of headings, she is not entitled to recover damages under all the headings because the claim arises out of the same set of circumstances and cause of action. The plaintiff is only entitled to recover damages under one heading of claim, but she is entitled to recover damages from her optimum position which in the particular circumstances is in respect of her claim for breach of warranty and accordingly I award the plaintiff €52,266.00 damages”  

The employer has sought to rely on the decision in Henderson v Henderson (1843) 3 Hare 100 at the previous hearing, but it is based on a flawed interpretation of that judgement. The employer has contended that the rule requires that it “ought not to be vexed twice by the same complaint”. However, the rule in Henderson v Henderson is summarised in the following passage:

“…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to the litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of in respect of matters which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.”

It was submitted that the abuse of process which the rule in Henderson seeks to avoid is the bringing multiple sets of litigation arising from the same set of facts and not, as the employer has suggested, the bringing of all relevant claims in the same litigation, which is in fact what Henderson endorses. Therefore, all the worker’s claims had to be brought in the one set of proceedings.

Substantive Case

Following the TUPE transfer the worker was moved to reception.  Initially she was busy learning all the new systems and procedures as well as carrying some of the role she performed for the previous employer. Over time her role changed, and she was no longer doing tasks which she had previously carried out despite assurances that under TUPE her role would remain the same.  The legal team of which the worker had been part of since joining moved premises in May 2017, but she was not moved and was not told what was happening to her. She was then moved to the Respondent’s offices in the IFSC, and her role was fundamentally changed by this move and she had no work, because the offices had their own facilities management, and the legal team was based across the city in a serviced office.

When the worker queried her manager about the work she was supposed to be doing, she was asked to carry out work for the UK offices. The legal team moved to the IFSC offices in 2018 but the worker did not rejoin the team.  The office was closed in March 2020 due to the Covid pandemic.  The worker worked from home on Health and Safety projects and drawing up protocols for the offices. In September 2020 she was informed that her role would be reduced from 4-day week to a 2-day week from November 2020. The worker protested that the Respondent could not unilaterally reduce her working week and that she would have to be offered the option of redundancy or an alternative position. The worker said she was surprised about the timing of the redundancy as she would be busy with the reopening of offices

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Pre-liminary Jurisdictional Issue

The question for consideration is whether I can hear a complaint of unfair dismissal under both the Unfair Dismissals Act 1977 and the Industrial Relation Act 1969.  I note that the employer did not object to hearing a dispute under section 13 of the Industrial Relations Act other than that the worker cannot bring a complaint under both legislation based on the same set of facts. The employer representative submitted that, I am precluded from hearing a complaint under both statutes and, stating that it is an accepted legal principal that an employer cannot be “vexed” twice for the same set of facts. I was also referred me to Section 101 (4)(4A) of the Employment Equality Act, 1998 -2015 cited above and to the rule in Henderson v Henderson. The workers representative contended that there was no bar in hearing both claims, that the section 101(4)(4A) of the EE Act 1998 does not apply and the rule in Henderson v Henderson supports bringing all claims together.

I note that Section 101(4)(4A) of the EE Acts 1998 as amended applies to complaints taken under both the Unfair Dismissals Act, 1977 and the Employment Equality Acts, 1998 and prohibits the hearing of both an unfair dismissal and a discriminatory dismissal complaint.  This not a discriminatory dismissal complaint. Therefore, I am satisfied that there is no statutory provision which prevents the hearing of a complaint under the Unfair Dismissals Act, 1977 and a dispute under the Industrial Relations Act, 1969.  I also note that both claims were referred together and this satisfies the rule in Henderson v Henderson which requires that all matters pertaining to the case for litigation should be brought forward at the same time.  Furthermore, in the event of a finding of unfair dismissal, I can only award compensation under one heading.

I am satisfied therefore I have jurisdiction to hear the claim of unfair dismissal under the UD Act and the dispute concerning the dismissal under the Industrial Relations Act, 1969.       

Substantive Case

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The matter I must consider is whether a genuine redundancy situation existed.   I note that was the only person in the role of facilities manager and that the employer decided, because of the reduction in support required by a client account, to offer the worker a 2-day week which she declined and as a result she was made redundant. I am satisfied that the work that the worker was employed to do had “diminished” and having regard to Section 7(2) of the Redundancy Payments Act1967 cited above I am satisfied that the dismissal was for reasons of redundancy.  As the worker was the only employee in the role she was not unfairly selected for redundancy. I am also satisfied that fair procedures were followed, and the worker was notified that her job was at risk of redundancy. Following a number of consultation meetings, she was was made redundant.

For all of the above reasons, I find the worker was dismissed for reasons of redundancy and that she was not unfairly dismissed.

I do not recommend a finding in favour of the worker in this dispute.

Industrial Relations Act ,1969 – unfair dismissal, Jurisdiction to hear claim under both the Unfair Dismissals Act, 1977 and the IR Act 1969.