UDD2431

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033978 (CA-00046458-003)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 7th September 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4th June 2024.

DECISION:

This is an appeal by Brian Healy (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00028774- CA-00046458-003 given under the Unfair Dismissals Act 1977 to 2015 (the Acts) in a claim that he was unfairly dismissed by his former employer Pilvine Ltd (hereafter the Respondent).  The Adjudication Officer found that the complaint was not well founded, and that he was not unfairly dismissed.

Background

The Complainant commenced employment with the Respondent in 2016.  His employment terminated on the 23rd April 2021 by way of redundancy.  The Complainant submits that he was unfairly selected for redundancy and was subjected to an unfair procedure. This case is linked to PW/23/87, PW/23/88, TE/23/62 and TE/23/61.

Summary of Respondent’s submission

 The Complainant was employed by the Respondent as a sign fitter. The Complainant’s role meant he was out in the van on site fitting signs a lot of the time. Most mornings there was a production meeting at 9.00 am, for all staff where jobs were allocated and progress on existing jobs assessed. In 2020 a business review was undertaken, and it showed that several areas in the business needed further review and that new ways of working needed to be considered. One area being considered was the viability of keeping sign fitting in house.  However, with the onset of Covid these discussions were put on hold. During the pandemic the orders for signs that needed to be fitted dried up and the focus of the business changed to product-based business and moving away from fitting.

By email of 23rd March 2021, the Complainant was invited to a meeting on the 26th March 2021. At that meeting the Complainant was advised that the role he fulfilled i.e. sign fitter, was at risk of becoming redundant. He was advised that the business model was changing, that no final decision had been made in relation to his future employment and that consultation would take place to identify alternative options. Following the meeting an email was sent reiterating the main points of the meeting and suggesting that the Complainant take some time to review the matters and to respond by email no later than 5.00 pm on 31st March 2021.

On the 29th March 2021, the Complainant’s Trade Union representative emailed the Respondent. In that email the Complainant’s role was referred to as Production Manager.  This was the first time that the Complainant’s role was referred to as being that of Production Manager.  It is the Respondent’s submission that the Complainant never carried out the role of Production Manager, Ms Edi Kivimae who has been with the Respondent since 2011 has held that role since 2014. The Complainant in his complaint form to the WRC confirms that his role was sign manufacturer/sign maker.

In and around that time, there were some joint discussions around a possible redundancy package. However, no agreement could be reached. The Respondent does not accept the submission by the Complainant that he was ever asked to work Saturdays without pay. When the Respondent was reorganising the office and getting new machinery, staff were asked if they would come in on Saturday to assist with same. They were advised that they would receive time in lieu for attending.  In respect of the Worker the Complainant describes as a trainee, Mr Rodriguez initially started with the Respondent as a trainee, carrying out various tasks. He was kept on after he completed his qualifications, in a management role. 

The Respondent submitted that there was a genuine need to cut costs within the business and the Complainant’s role was not required going forward. The role of sign fitter was removed from the organisational structure on the basis that it was more financially viable to have that role carried out by subcontractors, and the Complainant was the only person in that role.  In terms of the selection process to identify who should be made redundant the Complainant was the only person considered.

By email and registered post, the Complainant was advised that he was being made redundant and that his last date in work would be 23rd April 2021. The Complainant appealed the decision to make him redundant and the appeal was heard by an external third party. The Complainant’s appeal was not upheld.

 In support of their position that there was a genuine redundancy, the Respondent opened the case of A Hair Stylist v A Hairdressing Salon ADJ-00015823 to the Court.

 Summary of Complainant’s submission and evidence

The Complainant has 35 years’ experience in the industry. Before commencing with the Respondent, he ran his own company employing up to four staff.  When he started with the Respondent there were two other employees. In 2018 a trainee was taken on who worked with the Complainant. In 2020 he was informed that the trainee, going forward would carry out the role of Building Manager. The Complainant’s representative submitted that it is the Complainant’s case that shortly after he refused to work on Saturdays without pay, he was isolated, excluded from meetings and his workstation was removed.

 The Complainant in his evidence to the Court stated that his duties included engaging with customers, taking orders by email and phone, delegating work to Ms Kivimaci, applying graphics, going out on site to measure or install signs or just delivering to sites. Jobs were usually processed through a system called workflow. He did not have a personal work email, but work came to him through a generic company email address.

The Complainant stated that he was never given his terms and conditions of employment in writing, but he had a discussion with the Respondent prior to taking up the job, and it was agreed that he would work Monday to Friday 9-5 and that his pay would be €450 nett.  He would also have use of a company van, and an opportunity to use the machinery for his own clients. The Complainant submitted that the opportunity to use the machinery for his own clients had a monetary benefit for him. At the commencement of the employment, he used his own van for which he was paid.  After about 4/5 months the Respondent provided a company van. He would bring the van home with him except when he was going on holidays.  The Complainant confirmed that Mr McKay (Director) would sometimes use the van during working hours as well.

The Complainant in his evidence to the Court stated that Mr Rodriquez who started as a trainee in 2018, caried out duties that included sign fitting, sign manufacturing in the workshop as well as site work. He did a bit of everything. It was his evidence that Mr Rodriques was still installing and manufacturing signs right up to the time he was made redundant. He confirmed that he was not aware of any other role that he carried out.

The Complainant stated that he lost access to the production schedule when his workstation was removed in January 2020. There was a revamp within the workshop, and he noticed that Mr Rodriguez was logging on to the Complainants computer more often now, and taking a lead in ordering materials which he would normally do. When he came back to work after the first Covid lay off Mr Rodriguez would tell him where the jobs were and where he had to go. At that stage, he was working downstairs and no longer in the office beside Mr McKay.

 The Complainant stated that after they were laid off because of Covid, Mr Rodriguez was brought back to work before him, and he only found out about that by accident. While on lay off he got an email saying the Respondent was considering selling the van. However, when he returned to work in July the van was still there, but it was never given back to him. He used it during the day for work but did not bring it home. It was his evidence that he was told by Mr McKay to leave the van in the workplace except for one occasion when he had to go to Galway.

It was the Complainant’s evidence that Cameras and GPS were put in the van while he was on lay off, and he was not told about it. Within two weeks of being back at work, Mr Mc Kay sat him down and showed him data from the cameras. It was his evidence that he was not given any policies about use of CCTV and GPS. In August 2020 he was given a handbook which contained a CCTV policy. The second van which was used by Mr Rodriguez did not have CCTV and GPS installed in it.

In the period July to October 2020, they were very busy with Covid signage. The second lay off was from 28th October 2020. At that time, there was an informal discussion about his payment of wages case and a possible package, he asked them to send him the numbers. He then went on annual leave, no details of a package were supplied, and after that but he was put back on layoff and never went back to work.  The Complainant stated that he did not know if anyone else was laid off at that stage.

It was his evidence that he received a letter about a meeting on the 18 March 2021. The meeting lasted about 45 minutes, he was told they wanted to bring in contractors to fit the signs, he felt that was high risk based on his previous experience and set that out for the Respondent. He queried why Mr Rodriguez was not being made redundant as he was a fitter and the obvious choice. He did not receive any meaningful answer to that query. The Complainant stated that his loss arising from his dismissal was €504 x 58 weeks. He had looked for jobs and had delivered CVs, around an industrial estate and made enquiries with various employers.

Under cross examination the Complainant accepted that there were two vans and that the vans were used by other people not just him. He was asked when he raised concerns about not using the van, it was his evidence that he had done it on the first day back in July 2020, when he returned from the first lock down. The Complainant accepted that the CCTV was not in the van on his first day back but was installed two or three days later. It was put to him that the GPS tracking system was in the van before Covid he accepted that he did not know when it was installed.  

 In response to a question from the Respondents representative he stated that between July 2020 and April 2021 Mr Rodriguez did 60/70 jobs out on site and in the same period he did 70/80 jobs out on site.

 The Complainant’s Union representative submitted that there was no genuine redundancy and even if there was, there was no fair selection process.  There was at least one other colleague who did similar work to the Complainant who was not even considered. Mr Dorda opened the case of Boucher v Irish Productivity Centre UD882/92, UD969/92, UD 1005/92 in support of their contention that the onus of proof lies with the employer to establish that he acted fairly, and that in this case that has not been established.

The relevant law

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

 Section 6 Unfair Dismissal

(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.

(2) ……

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Court having considered all the submissions and evidence before it, determines that there was a genuine redundancy situation arising from the Respondent’s decision to refocus the business.  However, there was no evidence before the Court, that the Respondent considered any option other than making the Complainant redundant.

 It was the uncontested evidence of the Complainant that in the period July 2020 to April 2021, he carried out approximately 70/80 jobs on site and Mr Rodriguez carried out 60/70 in the same time frame. It is the Court’s understanding that the onsite jobs involved putting up signs and or delivering signs to sites, the tasks that the Respondent wanted to outsource.

It was not in dispute between the parties that the Complainant had longer service than Mr Rodriguez. The Respondent did not dispute that Mr Rodriguez had only done a marginally smaller amount of the work that was being outsourced, than the Complainant in the run up to the redundancy.

 No information or evidence was put before the Court demonstrating how the Respondent came to the conclusion that it should be the Complainant and not Mr Rodrigues who was to be made redundant. Nor was the Court provided with any information in respect of any other alternatives to redundancy considered by the Respondent.  In the circumstances it is difficult to understand how a fair selection process can be said to have been utilised.

 As the Respondent has failed to demonstrate that they followed a fair selection procedure incoming to the decision that the Complainant was to be made redundant, they cannot rely on the protection of the Act as set out at section 6 (4)( c ). The Court therefore, determines that the dismissal was unfair.

Remedy

Section 7 of the Act states

7.—(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 or the Labour Court, as the case may be, 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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong, he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000.   This compensation is in addition to any statutory redundancy payments that the Complainant has already received. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000.  The decision of the Adjudication Officer is set aside.  The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
24 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.