Complainant

Respondent

Parties

Eric  Cullen

C.L.S Online

Representatives

 Arthur Cush BL instructed by Kenny Sullivan Solicitors

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-00055167-001

17/02/2023

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

CA-00055167-002

17/02/2023

The Respondent is a small haulier company based in Dublin. The Complainant worked as a delivery driver for the Respondent until he was made redundant on the 16th of November 2022.

The Complainant first began working for the Respondent in April 2014 but resigned in January 2018. He returned to his post almost immediately. The Complainant was paid redundancy based on his service from 2018 rather than 2014.

He has brought a complaint alleging he was unfairly dismissed and, in the alternative, was underpaid statutory redundancy.   

The Respondent’s Managing Director, Robbie Apps, gave evidence under oath. The Respondent is a small business and is one of only two directors. His wife is the other director.

He has been in business since 2006.  In 2022 the business experienced a downturn. They had six drivers in late 2022 and at the time of the WRC hearing had only four.

The Complainant is well thought of. He got along great with everyone he worked with and he was good at his job.

The Complainant is based in Mullingar. He resigned in 2018 as he had found a job more locally. The Respondent was sorry to see him go and Mr Apps was clear he would like to take him back. The Complainant finished up on a Friday and requested p45 which was issued. A few days later he got in touch as he wasn’t happy with the new job. Mr Apps was happy to have him back.

As the Complainant lives in Mullingar he is the only one who doesn’t leave his truck in the yard.  The five other drivers at the time of his redundancy were all Dublin based. The Respondent tends to divide work by route. The four main different routes are the southeast, south midlands, north midlands, Dublin.

The Respondent’s yard and collection point is in Tallaght.

In 2021 the volume of work began to drop off significantly.  Then 2022, the energy crisis resulting from the war in Ukraine effected their business further. They operate on a small margin and their cost base increased dramatically. The price for a litre of diesel went to €2. Oil and other necessities went up significantly.

Limited subsidies were provided by the Government but they failed to alleviate the crisis. In 2022 the Respondent lost €44,000 and Mr Apps was required to lodge €44,000 of his own money to keep the business afloat.

One of the Respondent’s routes used to end up in Mullingar. The Complainant had performed that route but it died off in 2022. For 27 days in 2022 the Respondent didn’t have any work to give the Complainant, he was paid for these days. They were limited in what they could give them because he couldn’t be too much driving with his commute at the end of the day.

There was also an additional cost in keeping the Complainant. He continued to work a route that  ended in Carlow but this was still a significant distance from his home in Mullingar. This resulted in a lot of “dead diesel,” that is diesel used moving unloaded trucks.

In October 2022 Mr Apps reviewed his annual profits and loss account. It was clear that he was introducing funds on an ongoing basis and there had to be reduction in the cost base. Based on those figures it was clear that he had one choice.

He didn’t explore other options with Mr Cullen, but he did consider other options himself. He tried to get other work in unsuccessfully.  He didn’t hire any new drivers. The Complainant was made redundant and another left voluntarily.  The remaining drivers are all in Dublin.

The Complainant gave evidence under oath.

On Friday the 28th of October he was asked to leave the truck at home and drive up to Dublin in his car. He didn’t know what the meeting was about. Mr Apps brought him up to the office upstairs and told him he was going to be made redundant. He stopped working on that date and was given a formal letter the following week. He was paid notice up until the 16th of November 2022.

The Complainant was caught off guard on the 28th of October. There was no indication that he was going to be made redundant there had been no previous conversations about that possibility.

He would have been more than willing to help and consider options such as a three-day week. If needed he would have accepted his truck finishing in Dublin and he would have taken on the additional driving in his own car. It was never put to him that he was using too much diesel.

The Law

Section 6 of the Unfair Dismissals Act provides that:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The burden of proof is on the Respondent to establish that there were substantial grounds justifying dismissal. In this case they argue that the Complainant’s role became redundant

Section 6 goes on to state that:

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

……

(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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to:

…..

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise,

Findings

The Respondent has provided clear evidence of the stark financial realities facing them and that they needed to downsize.

However, their evidence is less clear as to why the Complainant was selected for redundancy as opposed to his colleagues. No clear procedure was followed. The Complainant was not pooled for selection with his colleagues nor was not given a reason for not being pooled.

The Respondent did in the hearing did outline that some of the business the Complainant used to do had fallen away and there was too much “dead diesel” involved in his van returning to his home in Mullingar. Mr Apps suggested that all alternatives were considered. However, none of this was put to Complainant at the time of dismissal.

The Complainant indicated in the hearing that he was willing to bring the van back to the depot in Dublin and resuming commuting as he had previously done. He also indicated that he was willing to go part-time. Neither of these options could be explored because the Respondent did not provide him any opportunity to suggest alternatives to being made redundant.  

When a van needed to be driven back to the Complainant’s home, this was classed as dead diesel. However, when the Respondent’s other vans would have to return to Dublin, similarly empty, this appears not to have been classed as dead diesel.

I am of the view that the Respondent has failed to properly establish why it selected the Complainant for dismissal. In the circumstances I am satisfied that the Complainant’s claim for unfair dismissal must succeed. His claim under the redundancy payments act must fail.  

Redress

The Complainant is not seeking reinstatement or reengagement.

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 he incurred any financial loss attributable to the dismissal.

The legislation defines 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 act envisages redress for both elements of financial loss. That is 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 a statutory redundancy payment, I do not need to examine whether a payment needs to be made the Complainant in this case relating to that element of loss.

The Complainant was out of work for 4 months.  His has a loss of €6400 in income for that period.

Under cross examination he gave vague evidence about his efforts to find work during this period. He said he tried looking for work and supplied evidence of having applied for five jobs online. He was also visiting companies in person but didn’t know how many.

Section 7 (2) of the act provides that 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—

….

(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 Complainant was back in work only four months after he was dismissed. I am satisfied that he took some measures to mitigate his loss of income. However, on review of his evidence, I also believe that he could have done significantly more.

In the circumstances I believe it is appropriate to reduce the award by approximately a third.

I award the Complainant €4250

CA-00055167-001

I find that the complaint is well founded and award the Complainant €4250.

CA-00055167-002

I find that the complaint is not well founded.