Complainant

Respondent

Parties

Oliver  Ward

Silverhill Civil Contracts Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

  In Person

Roberta Urbon, Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060031-001

15/11/2023

This is a redundancy complaint.

The Respondent company is a ground-works company which employs workers to prepare ground for the laying cables of fibre-optic broadband nationwide. The Respondent does this sub-contracted work for larger companies, which have contracts with the State and with broadband providers.

The work of the Respondent includes the erection of poles, digging of ground, laying of cable and (from September – February each year) the additional work of trimming of trees along the route of the cable.

The Complainant alleges that he was made redundant on 11 August 2023 and he seeks a redundancy payment.

The Respondent denies the complaint and allege that on 9 August 2023 the Complainant was unhappy with revised terms and conditions for the tree trimming work and he resigned his employment voluntarily on 11 August 2023 by email when he requested his P.45.

Under affirmation the Complainant gave the following evidence:

1.       He commenced work with the Respondent on 22.3.2021.

2.       His work was alongside a crew of 4/5 men. Their responsibilities were pole erection, clearing ground, digging ground and laying fibre optic cable. For this work he received a wage of €750.00 per week.

3.       Between September – February in 2022 the crew did the additional work of tree trimming and for this they were paid an additional rate of €2.00 per metre. Typically, the crew were capable of trimming between 2500-3500m per week which gave each member of the crew an additional payment (based on 2500m) of €325.  This meant that during tree trimming season his average weekly pay was €1025 gross per week.

4.       In 2022 a dispute between the parties emerged over pay, but this was resolved.

5.       On 9 August 2023 the crews were emailed by Daniel Breslin (the managing director of the Respondent) to inform them that the crew size would be reduced to 4 from 5 men (because accommodation for 5 men was difficult to find) and the pay rate for tree trimming would be reduced to €1.8 euro per metre from €2 per metre. Their basic salary would remain unchanged. No reduction of the Complainant’s crew took place at this time.

6.       On the same day the Complainant emailed Daniel Breslin and advised him that he was not happy about the changes to pay and crew size and that he would not do the tree trimming work due to the change in terms (less pay for more work.)

7.       Subsequent to that email, the Complainant rang Daniel Breslin and told him that he had perhaps acted hastily and that would do the tree trimming work after all.

8.       On 11 August 2023 Daniel Breslin emailed the Complainant advising him that he was laying him off because he had no other work for him to do at that time but would contact him if that changed.

9.       On the same day the Complainant emailed Daniel Breslin asking about his holiday pay and asked when he could expect his P45.

10.   On 1 November 2023 the Complainant wrote to the Respondent seeking a redundancy payment.

11.   On 15 November 2023 the Complainant issued a WRC complaint form in which he sought a redundancy payment.

In response to a cross examination by the Adjudication Officer the Complainant stated:

1.       That while it was his decision to leave the employment, he didn’t really have a choice given that his pay rate was being reduced and the crew numbers were being reduced.

2.       He asked for the P45 because Daniel Breslin emailed him to say that there was no other work for him to do (other than him doing the tree trimming work with the crew) but given that he had spoken to Daniel the day before on the phone changing his mind so that he would do the work, he considered this lay off to be a redundancy.

3.       The Complainant understood the difference between a dismissal complaint and a redundancy complaint. He accepts that the complaint that he took was a redundancy complaint.

4.       The Complainant accepted that his complaint form simply asserted a claim for redundancy but did not set out any detail in the narrative section explaining what happened or setting out the basis for the complaint.

5.       The Complainant accepts that he did not file any submissions setting out the nature or basis of his complaint.

Under affirmation Daniel Breslin – managing director of the Respondent – gave the following evidence:

1.       The Respondent company is based outside Donegal Town

2.       It is a ground works company that subcontracts work from larger construction companies which in turn have contracts with State bodies and broad band providers. The Respondent responsibilities are to erect poles, to clear ground, to dig ground, to lay cable – containing the fibre optic - and to do seasonal tree trimming along the route. They operate nationally.

3.       The staff of 40 employees include several crews – typically of 4 or 5 men.

4.       The work that is done by these crews is described as “civil work” (from February – September) which is the preparation of ground to lay cable and from September – February the crews concentrate more on tree trimming as well as the civil work.

5.       Up until August 2023 the tree trimming work was paid at a rate of €2 per metre. It had been €1.8 per hour previously but from when the Complainant started, the Respondent accepts that the rate was €2 per metre.

6.       The tree trimming work was optional for the workers. It was work that was done by the crews in addition to the civil work, but it was popular with the crews because they increased their wages significantly (on average by a third) between September – February each year.

7.        The crew worked as a unit so if the crew were doing tree trimming work, all the crew had to do tree trimming. It was not practical that one crew member would not do tree trimming work if the rest of the crew were doing it. The crews worked as a team.

8.       So once the Complainant advised him by email on 9 August 2023 that he was not prepared to do the trimming work, that decision brought the Complainant outside the work of the crew. So one way or other the Complainant would not be able to keep working with that crew. To his mind, Daniel Breslin thought that he would lay off the Complainant until such time as he could find an alternative role for him to do. He advised the Complainant of this.

9.       Daniel Breslin denies that the Complainant phoned him between 9-11 August to tell him that he had changed his mind and was happy to do the trimming work after all. Breslin has no memory of that phone call. 

10.   On 11 August 2023 there was no other work that the Complainant could do (that did not involve tree trimming) so Daniel emailed the Complainant advising that there was no other work for him and that he lay him off until he found other work for him.  

11.   In response to that the Complainant replied by email that day, asking for his outstanding holidays to be paid to him and asking when he could expect to receive his P45. From this Daniel Breslin considered this to be a resignation by the Complainant.

12.   At no point was the Complainant made redundant. He chose to leave the job because he was unhappy about the revised terms and conditions of the tree trimming work. That was his entitlement to do but ending the Complainant’s employment was not a decision that was taken by anyone other than the Complainant.

13.   The Complainant’s work was then absorbed into the reduced crew of 4. The work was still there for him to do. The role was not made redundant. It was the Complainant’s decision that he did not want to do the work on the terms and conditions on offer and after informing Daniel of this, as Daniel had no other alternative job for the Complainant that did not involve tree trimming he put the Complainant on lay off to allow him time to figure out if there was other work that the Complainant might be able to do and 2 days later on 11 August 2023, the Complainant requested his P45.

14.   In conclusion the Respondent denies that he made the Complainant redundant. There was no dismissal of the Complainant.

In response to cross examination by the Adjudication Officer Daniel Breslin stated:

1.       All the crews that were working in August 2023 were doing tree trimming work.

2.       Even if the Complainant had been made redundant, which is denied, there was no other work that was available to the Complainant that did not include tree trimming and he had made it clear that he did not want to do this work.

3.       The work that was done by the Complainant needed to be replaced. His role was not redundant. The work was absorbed by the remaining 4 in his crew, which meant that progress was slightly slower but the men had the potential to be paid more for the tree trimming work (because if they worked fast, the additional pay per metre was spread between 4 and not 5.)

The Legislation

The right to a redundancy payment is set out in section 7 of the Redundancy Payments Act 1967, as amended.

The statutory criteria in synopsis are: (a) that the employee must be dismissed by his employer and (b) the dismissal must have occurred because the job has ceased or the need for the job had diminished, and no suitable alternative role is available.

Specifically, Section 7(1) sets out the general right to a redundancy payment and Section 7(2) sets out the applicable criteria, which is that the dismissal must be wholly or mainly due 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.

TheFacts

The evidence of the Complainant (which is accepted by the Respondent) is not that he was dismissed from his employment but rather left his employment because of a change in the terms of his employment which he found to be unacceptable.

This could have been brought as a constructive dismissal complaint but that is not the complaint that was brought. In his complaint form, the Complainant ticked the redundancy box but did not then give any description of what occurred (the narrative section was left empty) which, if done, might have put the Respondent on notice that his complaint might not be a redundancy complaint but rather another type of complaint for example, a constructive dismissal complaint. However, this did not happen.

Therefore at the Adjudication hearing what the Respondent was on notice of and the case that the Respondent was obliged to meet was a complaint for redundancy.

In these circumstances I am obliged to consider this complaint as a Redundancy complaint only.

Finding

As the Complainant does not allege that he was dismissed, the first criterion in section 7 of the 1967 RP Acts, that a dismissal must have taken place, has not been discharged. I am satisfied that the Complainant chose to leave his employment albeit because he was unhappy with what he considered was an unfair change in his terms of employment.

On the balance of probabilities I do not accept his evidence that he telephoned Daniel Breslin between 9-11 August to inform him that he had changed his mind and would do the tree trimming  because if that had occurred, when Daniel emailed him saying that he was laying him off until he could get other work for him, the Complainant did not reply to say “wait, did I not tell you on the phone that I changed my mind.” Rather the Complainant replied to Breslin’s email in terms which clearly indicated his view that his employment was at an end and asked when he could expect to receive his holiday pay and P.45.

On the balance of probabilities I accept the evidence of Daniel Breslin that the Complainant was unhappy about the tree trimming proposed changes, he told Daniel Breslin that he would not be do the work on that basis,  he was then laid off for the Respondent see if there was any other work that the Complainant could do and before that consideration was had,  the Complainant emailed Daniel Breslin seeking his holiday pay and P.45. It was reasonable in these circumstances for the Daniel Breslin to believe that the Complainant has resigned his employment.

On this evidence I am satisfied that no dismissal took place. As no dismissal took place, no redundancy could be said to have occurred.

But even if it had, I do not accept that the Complainant has proven that it occurred because his job had ceased or the need for his work had diminished. Indeed, the Complainant does not seek to make out this case.

For the sake of completeness, is worth stating that if a constructive dismissal complaint had been pursued by the Complainant, there is no evidence that the Complainant raised a grievance with the Respondent prior to seeking his P45 from Daniel Breslin.

In respect of the redundancy complaint, I am satisfied that none of the criteria under Section 7(2) (a) (e) which are necessary to meet, have been met.

Conclusion

I find this complaint is not well founded. 

This complaint is not well founded. 

Redundancy – no dismissal