Complainant

Respondent

Parties

Trevor  Shaw

Minister for Agriculture, Food And Marine (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

Ellen Walsh Sean Ormonde & Co., Solicitors

Declan Harmon BL instructed by Chief State Solicitors’ Office  

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-00056889-001

29/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056889-002

29/05/2023

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

CA-00056889-003

29/05/2023

The Complainant was employed as a Civilian Driver by the Respondent from October 2020 and was paid €736.47 per week. He stated that he was unfairly dismissed by the Respondent in December 2022 when a decision was made to terminate his employment on the grounds of redundancy.

The Complainant worked as a ministerial driver from May 2011 until December 2022 and was provided with a new fixed term specified contract from the Respondent for each dissolution of the Dáil. This was standard in his dealings with the Department; he would receive a new contract for each assignment from the relevant Government Department.

On 25 November 2022, the Complainant received notice that his employment would end, allegedly as a result of the Department opting to use members of An Garda Siochana as drivers, rather than civilians. Several non-Garda drivers were retained for driving junior ministers however, despite the Complainant having more training, qualification and experience than those retained, being a retired Garda for some 32 years and former Garda driver.

The Complainant was offered a desk job in a social welfare office instead of a driving role. This was not a suitable offer as the Complainant had no experience with technology and office work.

The Complainant was employed as a Civilian Driver in the Respondent’s Department from October 2020, when the current Minister was appointed to his Office. The Complainant had previously been employed in an equivalent position in the Department of Defence since 2011. The purpose of the position of Civilian Driver was to act as a personal driver to the Minister. The position of Civilian Driver was a temporary, unestablished position in the Civil Service. It was a “fixed-term” position in the sense that the Complainant’s contract was coterminous with that of the incumbent Minister. The context to the position of Civilian Driver was that, in 2011, the then Government took a decision that members of the Government would not be assigned serving Gardaí as drivers, as had previously been the case. In 2022, consequent on security advice received by the Government, a decision was made that all Ministers who attend Cabinet (i.e. Cabinet Ministers and the small number of Ministers of State who attend Cabinet meetings) would thereafter be provided with serving Gardaí (and Garda vehicles) for driving duties. As a consequence, the position of Civilian Driver became redundant and severance arrangements were put in place for the affected personnel.

The Law

Section 6 of the Unfair Dismissal Act states inter alia

 (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.…

(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 as amended by the Industrial Relations Act 1990, 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.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

(c) the redundancy of the employee,  

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the 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 of the Redundancy Payments Act, 1967, as amended, states:

“(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—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(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, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

Findings:

According to the evidence presented by the Respondent, the Complainant was dismissed on the grounds of redundancy because he was a Civilian Driver. Specifically, the Respondent’s witness claimed that the Complainant was no longer required because a decision had been made, on foot of security concerns, that the drivers of all the regular attendees at Cabinet, namely the Cabinet Office holders as well as the Super Junior Ministers, had to be serving members of An Garda Siochana. The instruction to dismiss the Complainant, who was a civilian driver and a retired member of An Garda Siochana, was thereafter communicated by the Department of Public Expenditure to the Department of Agriculture.

It is evident from a review of the relevant case law however that when redundancy is cited as the reason for the termination of employment, it is necessary not only to satisfy the definition of redundancy but also to demonstrate that the Complainant was fairly dismissed.

In the first instance, I note that the Complainant stated that he heard rumours in early 2022 that a decision had been made to dismiss all the civilian drivers. He further asserted that these rumours were substantiated in part in February/March2022 when the civilian drivers for both the Minister for Finance and Public Expenditure were dismissed. While he was gravely concerned for his livelihood after this and repeatedly questioned the Respondent about it, he received no clarification whatsoever about his future employment, and was effectively left dangling for almost a year, until he finally received notification of his termination on 25 November 2022 without any consultation whatsoever having been engaged in by the Respondent prior to this.

The necessity to consult with an employee whose position is at risk of redundancy has been set out by the Labour Court decision in Student Union Commercial Services v Traynor UDD1726, wherein it was stated that there was a requirement “to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.”

If the Respondent had engaged in a proper consultation process in the instant case and sought to avoid dismissing the Complainant, they should, in my view, have discussed in the first instance the possibility of him becoming a driver to a junior minister who was not attending cabinet given that all of their civilian drivers were being retained. Other options that were open to the Respondent included the possibility of offering the option of voluntary redundancy to the junior ministers’ civilian drivers. This examination of alternatives is consistent with the Labour Court decision in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854, where it was found, that “all available options” should have been examined by the Respondent.  

In addition to the absence of a consultation process, I also noted the Respondent’s shocking assertion that they were obliged to dismiss the Complainant on foot of an instruction from the Department of Public Expenditure. Any prudent employer, in addition to engaging in a meaningful consultation with the Complainant, would have insisted that the Department of Public Expenditure incorporate all civilian drivers of regular Cabinet attendees, who were at risk of redundancy, into a selection matrix. This matrix should have also included drivers of junior ministers, who were to be retained, and appropriate redundancy selection criteria should have been chosen, rather than relying solely on the criterion of which Minister they were driving for.

This is consistent with the decision of the Employment Appeals Tribunal in Gillian Free v Oxigen Environmental UD 206/2011, where it was noted that:

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

I also noted that only one alternative to redundancy was presented by the Respondent to the Complainant prior to issuing his notification of dismissal. Specifically, he was offered a position as a Temporary Clerical Officer in the Department of Social Welfare. This role was offered without any consultation or discussion around the Complainant’s skillset and was refused by him because it was unsuitable largely because he did not have the IT skills that he believed would be required for the role.

As well as the failure to consult and engage with the Complainant, I also note that there was no avenue of appeal provided to him when he was informed that there was no position available for her. Such a process could have given him the opportunity to defend his future employment and highlight his willingness to work in alternative roles.

Finally, it is symptomatic of the egregious treatment of the Complainant throughout this process that the date of the termination of his employment was Christmas day, namely 25 December 2022.

Considering all of the foregoing, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015.

CA-00056889-001:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or 

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, 

(2) 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—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(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,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“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;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Findings

While I gave serious consideration to the Complainant’s re-instatement, given the egregious treatment of him by the Respondent as outlined above, he stated in evidence that he was only seeking compensation, despite having been pressed by me on two separate occasions during the hearing on whether he wished to return to the Respondent. It would therefore be inappropriate for me to re-instate him in his previous role and accordingly I have decided to make an order of compensation.

The Respondent’s representative highlighted, without prejudice to his submission that the Complainant had not been unfairly dismissed, that as he had failed to mitigate his loss, any award should be minimal. In considering this assertion, I note that there is conflicting case law around the calculation of loss with many decisions focusing solely on the efforts of a Complainant to mitigate his or her loss and appearing to disregard the conduct of the employer in relation to the dismissal. This is, in my view, at odds with the legislative provisions set out above and, in calculating the compensation to award in the instant case, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In examining section 7(2)(a), I find, as outlined above, that the Respondent acted wholly unreasonably both in peremptorily dismissing the Complainant and not engaging in any consultation process whatsoever with him prior to his redundancy. The peremptory nature of the dismissal was underscored by the failure to offer an appeal of the decision to dismiss him. In considering section 7(2) (b) and (f), I note that the Complainant’s employment ceased on the grounds of redundancy and therefore find that he made no contribution to the termination of his employment. Furthermore, I determine that section 7(2)(d) and (e) of the Act do not apply in this case. Considering section 7(2)(c), it is worth noting that the Complainant provided little evidence of mitigation.

Considering therefore the egregious conduct of the Respondent surrounding the dismissal and the Complainant’s insufficient efforts to mitigate his financial loss, which are the only elements of section 7 (2) above applicable in the instant case, I make an award of €30,000 in respect of the unfair dismissal.

For the avoidance of doubt, this is in addition to both the redundancy and ex-gratia payment that the Complainant has already received.

CA-00056889-002:

This complaint was withdrawn

CA-00056889-003:

This complaint was withdrawn