Complainant

Respondent

Parties

Richard  Green

Tramline Taverns Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Anne O'connell AOC Solicitors

Gavin Simons AMOSS LLP

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-00056769-001

19/05/2023

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

CA-00056769-002

19/05/2023

The Complainant commenced employment with the Respondent on 27 February 2017 as Operations Manager.  His gross weekly pay was €1,000.  His employment ended on 3 January 2023. A complaint form was received by the WRC on 19 May 2023.

The Respondent did not attend the hearing.

The Complainant provided a detailed written submission.

In the written submission the Complainant submits that he was unlawfully dismissed on 3 January 2023. He was dismissed under the guise of a redundancy, however, there was no genuine redundancy at that time.  Furthermore, the Respondent did not conduct any consultation process with the Complainant or seek his input before communicating its finalised decision to terminate the Complainant’s employment.

The Complainant gave evidence on Affirmation at the hearing.

The Complainant described his role in the Respondent company, he was Operations Manager, working alongside the Manager.

In November 2021, the Complainant went for a medical check-up and discovered he required a triple bypass. When he relayed this news to a Director of the Respondent, he noted a distinct change in the way this Director spoke to him. In January 2022, he started to get text messages from this Director which worried him and caused him to seek legal advice on how to handle matters. In February 2022, he noticed that he stopped getting work messages on WhatsApp from his boss as he had heretofore.

Following his recovery from surgery he contacted the Director to inform him that he was fit to return to work.  However, the Director told him to talk to a HR Consultancy about the situation.  When he spoke with a representative of the HR Consultancy, he asked him to talk to the Director about a return to work.  The Complainant was told there was a review on going and a report would be forthcoming. The Complainant never saw this report. 

In early December 2022, the Complainant received a letter from his manager informing him that the business was being restructured and his role was being made redundant. The Complainant attended his workplace on 30 December 2022, but he was escorted off the premises.

The Complainant gave evidence of his efforts to find alternative employment.

In conclusion, the Complainant submits that it is clear that there was no genuine redundancy and the Respondent denied the Complainant of any form of fair procedures whatsoever, in breach of natural justice and his Constitutional rights and in breach of the Unfair Dismissals Acts.  Furthermore, the Complainant did not receive any statutory redundancy payment. The Complainant detailed a loss of €34,320 at the time of the hearing plus a continuing loss of €1,000 per week.

The Complainant stated, on Affirmation, that he was never consulted about nor given an opportunity to participate in discussions about a redundancy.

Sec 7(2) The Redundancy Payments Act 1967 highlights a number of various where redundancy arises as follows:

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. 

It is clear from the evidence of the Complainant that the work had not ceased at the time of his dismissal.

It is clear from the uncontested evidence of the Complainant that this was not a genuine redundancy.

In accordance with Section 6.1 the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

On the uncontested evidence of the Complainant, I find this was an unfair dismissal.

In considering what an award is justified in this case, I take into account that (i) no statutory redundancy payment was received by the Complainant and (ii) the Complainant could have made greater efforts to find work than he had done up to the date of the hearing.  In those circumstances a believer an award of €7,620 (equivalent of statutory redundancy payment) plus 75% of the loss (less the statutory redundancy payment) as detailed by the Complainant is warranted, i.e., €27,645.

The Complainant was unfairly dismissed and I award him € 27,645.

The Complainant provided a detailed written submission.

In his written submission the Complainant submits that he was also subjected to discriminatory treatment due to his disability.  In November 2021, the Complainant informed a Director of the Respondent that he was due to have a heart operation in early 2022.  There was an immediate and surprising change in the Director’s behaviour towards the Complainant. The Complainant had a triple bypass in February 2022, and following his recovery he was certified to return to work in May 2022. However, despite repeated attempts to return to work, the Complainant was not permitted to return.

In his evidence the Complainant stated that he had no doubt that when he got sick it was used as a stick to beat him. The Complainant’s view was that his ill-health was used as an excuse to keep him out of work.  The Complainant also stated that he is and was able to work.

In conclusion, the Complainant submits that he was subjected to discriminatory treatment by the Respondent, whether it was conscious or unconscious, by refusing him a return to work when he was fit to do so.

The Respondent did not attend the hearing.

On the uncontested evidence of the Complainant, I find he was discriminated against by reason of his disability and was treated unlawfully by the Respondent when he was not allowed to return to work when certified fit to do so. I find compensation is warranted in this case.  Taking into account the fact that the Complainant was paid up to 12 May 2023, I believe an award of two month’s pay, i.e. €8,000, is just and equitable.

The Complainant was discriminated against. I award him €8,000.

Unfair Dismissal, Uncontested evidence