Complainant

Respondent

Parties

Andrew  Ellul

Citi Bus Limited & Dublin Coach

Representatives

  Self-Represented

C.O’Toole of Dawson O’Toole Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048173-001

17/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048173-002

17/01/2022

The issues in contention concern the ending of Employment of a Professional Accountant by a major private Bus Company. The Complainant was laid off in July 2020 as a result of Covid 19 and heard nothing further until October 2021 when he submitted a form RP9. The Employer response confirmed that his application for Redundancy was accepted.

Redundancy was paid and accepted in October 2021.

The Complainant was challenging the calculation /due Reckonable Periods of the Annual leave and Notice Pay elements of his Redundancy Lump Sum.

He was also maintaining that he had been Unfairly Dismissed. The Redundancy payment was a convenient vehicle for his Unfair Dismissal. This was strongly contested by the Respondent Employer.

The Employment began on the 28th May 2018 and formally ended on the 31st October 2021. The rate of Pay was approximately €90,000 per annum which included a bonus payment. This figure was subject to some discussion between the Parties.

1:1       CA-00048173-001 – Minimum Notice & Terms of Employment Act, 1973

The Complainant made an Oral testimony supported by a detailed Complaint Form. He had joined the Company in May 2018 as a Senior Professional Accountant. It was, then, a sizeable enterprise employing in excess of 216 staff in various categories but mostly bus drivers.  Covid restrictions had hit the Company hard and by July 2020 the workforce was down to 6 people, including the Complainant. The Manager Mr O’S, arrived in the Office and in a very brief conversation laid the Complainant off on Covid grounds, effectively “sine die”.  The Complainant heard nothing further from the Respondent but became aware via social media that the operation was resuming. He sent a form RP9 to the Company in October 2021 seeking redundancy. This was agreed and paid on the 26th October 2021.  However, the Complainant maintained that he was not paid any Minimum Notice Pay or Holidays accrued during the period from July 2020 to October 2021. This was his claim.

1:2       CA-00048173-002 - Unfair Dismissals Act,1977

The Complainant alleged that his exit, although categorised as Redundancy had in effect been an Unfair Dismissal. He was never communicated with or offered any discussions regarding alternative work possibilities. He had an exemplary employment record with no Disciplinary issues at all. He was, by July 2020, the only remaining professional Accountant in the Company. Following his departure and the phased resumption of work a firmer unqualified Accounts person is now, he believes doing the Accounts and the professional element had been outsourced to a Contract Accounting Company.

The General Manager has changed, and he did not know the new incumbent save for a first name. Any efforts at discussion were fruitless. As regards the Grievance procedure, which was raised in Cross Examination replied that as the Respondent was down to literally only two or three staff from July 2020 onwards there was no one he could raise a grievance with.

In summary his exit was without any procedures or appropriate discussions, mutual considerations of alternatives etc, that should have accompanied a proper Redundancy.  He had been Unfairly dismissed under the guise of Redundancy.

2:1       CA- 00048173-001 – Minimum Notice & Terms of Employment Act, 1973

As the Complainant accepted Voluntary Redundancy and as per Section 5(2) of the Minimum Notice and Terms of Employment Act 1973 - 2021 he is not entitled by law to a Minimum Notice payment.

2:2         CA -00048173-002 - Unfair Dismissals Act,1977

The Complainant applied for and accepted a Voluntary Redundancy Payment in October 2021. He was then, it was believed by the Respondent, in alternative comparable employment.

No suggestion of Unfair Dismissal can arise.

3:1         CA- 00048173-001 – Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted a form RP9 on the 4th of October 2021. This was accepted and the Respondent issued a Redundancy Payment on or about the 26th of October 2021.

Looking at the Calculations supplied by the Respondent I noted that Annual leave was Paid, and One Public Holiday was included. The Calculations were sent to the Respondent for checking during October and he appeared to have no issues. He is a professional Accountant and his acceptance at the time of the figures presented would have a high value. Copies of e-mails were submitted.

The period of Redundancy Service would appear to have been accepted as running to the 4th  October 2021 but later referred to as being the31st October 2021 in a final Respondent document.

Accordingly, it is hard to see any additional payments being due.

The Provision of the Special COVID-19 Related Lay-Off Payment Scheme of the Department of Social protection would not, on first reading, seem to be applicable as full service to the 31st October was allowed by the Employer.

Normal Statutory Holiday Pay was not accrued by any employee during the Covid Lock Down.

As stated, before and repeated on the RP9 forms, Minimum Notice does not apply in a case of Voluntary Redundancy. Section 5(2) of the Minimum Notice & Terms of Employment Act, 1973 apply

In overall summary this Complaint does not succeed for the reasons stated.

3:2        CA -00048173-002 - Unfair Dismissals Act,1977

The Respondent argued strongly that the Complainant had requested a Voluntary Severance Payment, and this had been agreed. Voluntary severance was paid. No Unfair Dismissal can arise.

In the Complainant’s favour he argued that there was a complete absence of any procedures or expected consultations regarding any alternatives to his Redundancy.

In the Oral evidence and cross examination, it was accepted that the Complainant had not had any difficulty in securing an alternative Accountancy Full Time Position shortly after leaving the Respondent.

On balance the procedures adopted by the Respondent may have been somewhat lacking in formal consultations, but the key factor was that the Complainant had applied for and accepted Voluntary Redundancy. It was not a case of Unfair Dismissal or indeed Compulsory redundancy.

In overall summary the complaint for Unfair Dismissal cannot be seen to be successful. It fails.

Unfair Dismissal, Minimum Notice, Covid Lay Off.