Complainant

Respondent

Anonymised Parties

An IT Employee

A web Design company

Representatives

 The Complainant’s brother

Company Director

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-00055550-001

14/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was conducted in accordance with the legal principles of fairness and in recognition of the fact that the proceedings constitute the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

Ordinarily, the hearing is conducted in Public. However, in this instance a request was made to have the hearing held in private with the decision anonymised. By way of preliminary Motion, an application was made by the Complainant’s representative herein who sought to establish the existence of special circumstances which merited a decision to conduct the proceedings in private. The Complainant’s brother spoke on behalf of the Complainant who has autism. It was put to me that putting the Complainant’s condition and medical details into the public forum would cause undue upset and distress to the Complainant.

The Respondent made no objection to the application. In the circumstances, I have decided that due to the existence of special circumstances, the proceedings should be conducted in private. I am also anonymising the decision to be uploaded onto the WRC website.

The Complainant attended the hearing. Unusually, the Complainant did not give oral evidence himself, and instead his brother spoke and advocated on his behalf. No issue was made of this by the Respondent representatives, and I am satisfied that this was fair and appropriate given the Complainant’s special circumstances.

The Complainant provided me with a submissions dated the 24th of July 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The narrative adduced by the complainant’s representative was challenged as appropriate by the Respondent.

The Complainant alleges that he was Unfairly dismissed.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the Company Director. The Respondent provided me with a point by point reply to the Complainant’s submission which was received by the WRC on or about the 31st of July 2023. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent’s position was challenged by the Complainant’s representative.

The Respondent accepts that the Employment was terminated and asserts that the Respondent’s financial outlook was such that the Respondent made two positions redundant – of which the Complainant’s position was one.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of this hearing. The Respondent provides technology solutions primarily to the Property sector (sales and lettings). The Company Director KJ stated that he was approached by a friend of the Complainant’s family about engaging the complainant as an intern to allow him to gain some experience and training. The Complainant had a computer science degree and was seeking mentorship in software development. I understand that the Respondent company was a good fit for the Complainant’s ambitions in this regard. The Respondent Director believed that he was assisting the Complainant ready himself for accessing employment.

The Complainant came to work as an Intern on or about the 4th of October 2021. The Complainant was not paid a salary. The Director said that his company had often taken Interns on in the past. I understand that the Respondent company has an ongoing relationship with a University in Lyon that sends students over to him to learn English and be trained in the technology and software being developed in the company.

The Complainant was a diligent student and the Director told me that the Complainant was given a lot of time and attention by the Director and his staff. He would be set projects and was getting trained up in the relevant development language and technology. In the course of the Internship the Complainant was supervised by the Director or another member of staff.

In and around March of 2022 the Complainant was invited to join the company and was put on a starting salary of circa €20,000.00. There was a wage subsidy scheme element to the remuneration in recognition of the Complainant’s particular situation The Director indicated that the pattern of engagement changed in March of 2022 as the Complainant was now being paid and needed to achieve goals set for him. The Director indicated that the Complainant’s performance was never is question. By early 2023 the complainant was working on a project under the guidance of a Mr. D which was in response to a particular client’s commission.

I accept that the company was going through a difficult time financially. In fact, only eight months after the Complainant was taken on fulltime, the Respondent company had been identified by Revenue as being non tax compliant. In November of 2022 I accept that the Department of Social Welfare flagged that unless there was a valid and current tax clearance cert it would not be in a position to continue paying the wage subsidy payments earmarked for the Complainant.

The Director stated that this was a difficult time for him as he wrestled with the company finances. There was a VAT debt due and owing and there had been losses. The Director himself injected €30,000.00 of his own monies into the company to keep it afloat.

In addition to this, the Respondent lost the client who had commissioned the work being conducted by Mr. D and the Complainant. This was a huge loss as the product being developed by the Complainant and Mr. D simply came to a shuddering halt. In fact, Mr. D left the company soon after as he seemingly recognised that the project was now not viable.

The Director was engaging with his Accountants and Auditors to see if he could cut through the crises. It was in this context that the issue of redundancies came into focus. There had never been Redundancies before, but the Director was asked to identify any skillset that was not core to the survival of the company and to restructure the company in accordance with what was viable. It was in these circumstances that the Director identified the Complainant as well as a web designer Mr E as possible candidates for redundancy.

I accept that the Complainant may not have known that there were serious issues around the survival of the company. One of the problems was the fact that the Complainant and his colleagues were mainly working remotely and may not have picked up on the day-to-day stresses and concerns in the workplace.

On balance I therefore do accept that it was a complete shock to the Complainant when he was invited into a meeting on the 21st of February 2023 and advised that he was being let go. With two weeks’ notice the Complainant had the requisite 52 weeks required under the UD legislation. I understand that the Complainant formed the impression that he was being let go as being “no longer required”. This was a false impression. In fact, the Complainant was being made redundant as part of an overall need to restructure the company so as to secure interim and long-term viability.

However, it is true to say that the Complainant had had no prior warning that his position was in jeopardy. He was given no opportunity to suggest alternatives or otherwise fight to be retained. His redundancy was presented as a fait accompli. I cannot know whether or not the Respondent looked at alternatives such as short time or lay off or alternative positions. More importantly the Complainant was never afforded the comfort of knowing what attempts were made or ideas were considered to keep him in the workplace.

On balance I am satisfied that the Respondent made the Complainant Redundant as part of a package of measures that needed to be implemented to ensure the survival of the company. I do not accept that the blunt termination of the employment was reasonable or fair and I accept that the Complainant was blindsided. I find therefore that the manner and timing of the termination was unfair, but I think the ultimate fact of Redundancy was unavoidable.  At best, there should have been a longer lead up to the termination (by reason of Redundancy) to allow this particular Complainant to process. Realistically the issue of Redundancy should have been raised with a three-to-four-week period to allow for genuine consultation. 

I note that the Respondent is happy to provide the Complainant with a fulsome reference for any future job application he might make.

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

CA-00055550-001 – The procedure adopted by the Respondent when making the Complainant Redundant was unreasonable and unfair and I award compensation for financial loss in the amount of €1,200.00.