Complainant

Respondent

Parties

Martin  O Brien

Brave Flavour Limited t/a  Mr Curry

Representatives

  Self

Hanyie Lamb

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-00065414-001

27/06/2024

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

CA-00065414-002

27/06/2024

The Complainant commenced employment with the Respondent in June 2014 following a period of work placement under a particular scheme.  He continued working until 03/01/2024 and submitted two complaints to the Workplace Relations Commission on 27/06/2024 in relation to unfair dismissal or in the alternative he is seeking a redundancy payment.  The Respondent submits that the Complainant was never dismissed and no redundancy situation ever existed.   The Complainant was paid €14.00 per hour and when his employment ended he was working two 8-hour days per week.

The Complainant gave evidence on affirmation.  He outlined that the basis of his complaints was that these arose from a situation that developed in December 2023.  The Complainant stated that at that time he noticed that the name of the company had changed from Mr Curry to Brave Flavour Limited and he was concerned about who he was now working for.  The Respondent issued a letter on 14/12/2024 which outlined the Christmas schedule.  This letter also contained a line which stated “Brave Flavour trading as Mr Curry”.   The Complainant gave evidence that this was the first correspondence he received with this change and he felt that something was not right.  The Complainant contacted the Respondent by text message on 20/12/23 seeking an opportunity to talk about holiday pay and public holiday entitlement.  The Complainant was concerned that having agreed to work two days per week to assist the Respondent his workload had doubled and rather than increase his hours the Respondent took on additional part time staff who were family friends. 

The Complainant gave evidence that when he met the Respondent he was asked to fill out a form with his bank details but he wanted to continue to be paid in cash.  As part of this the Respondent requested him to sign that he would agree to a three-day week.  The Complainant’s evidence was that he could not agree to three days per week and that he was told by the Respondent that he could leave the factory if he did not agree.  The Complainant stated that the Respondent said that he would look at redundancy and agreed to look this up the following day online.

The Complainant gave the Respondent a letter which stated:

“To Whom it may concern:  I have spoken with Paul Lamb this morning and decided it is best to give 4 weeks’ notice and start redundancy proceedings.   Martin O’Brien 3/1/24”.

It is the Complainant’s position that when the Respondent asked him to leave the factory this was a dismissal.  The Complainant also submitted that his letter of 3/1/24 was submitted to the Respondent on the understanding that a redundancy process would be undertaken.

The Complainant gave evidence that his letter was acknowledged by WhatsApp message and also a registered letter.  The Complainant stated that he sent various emails to the Respondent seeking redundancy payment but did not receive anything.  He believes that his entitlement to redundancy arises from the fact that he had a contract of employment which stated he would be working four days per week and as the Respondent did not fulfil its obligations and only provided him with work on two days per week.

Cross examination of Complainant:

The Complainant was cross examined by Ms Hanyie Lamb on behalf of the Respondent.  It was put to the Complainant that his entitlement to a four-day week was in dispute and that he was on a two-day week which was mutually agreed.  The Complainant stated that he would not agree.  He was working 3 days per week and in April 2023 this reduced to 2 days per week.

It was put to the Complainant that there was no change in relation to his employer.  The Respondent had changed from being a sole trader to a company with limited liability.  The Complainant agreed that was the case.  The Complainant was asked when he became aware of this change and he stated that it was in December 2023.  It was put to the Complainant that the Respondent will adduce evidence that this change was discussed informally with in in the Sumer of 2023.  The evidence is that he requested documentation from the Respondent as part of Supplementary Welfare Application and this included a document which stated that the Respondent was Brave Flavour Limited trading as Mr Curry.  The Complainant stated that he did not receive any copy of the company registration and only received copies of his work hours.

It was put to the Complainant that these documents were submitted by the Complainant in October 2023 to Social Protection and he was aware of the new entity.  The Complainant stated that he was not aware and no one discussed it with him.

It was then put to the Complainant that he received a letter from the Respondent on 14/12/2023 which outlined the working days over the Christmas Period.  He stated that this was the first time he became aware of the Respondent’s status and he felt that this letter was setting a precedent in relation to the working days.  The Complainant was asked what he done with his pay slips and letter of company registration when he received those in September 2023.  He confirmed that he sent them to the Department of Social Protection.

The Complainant was asked what his issue was with the change in the Respondent’s status. He stated that he disputed that he was not consulted.  It was then put to the Complainant that he did not work for the new entity.  He disagreed and stated that what was happening was that he was being asked to sign a new contract to work three days per week.

The Complainant was asked about what happened on 03/01/2024.  He stated that the Respondent asked if he (and his colleagues) would agree to work three days per week and they were not agreeable. 

The Complainant was asked how this could bring about a redundancy entitlement and he stated that as the Respondent was not able to fulfil their part of the contract and provide him with four days per week he should be entitled to a redundancy payment.

It was put to the Complainant that in circumstances where there was work available why would he be entitled to redundancy and he stated that it was because of the reduction in his hours.  The Complainant also agreed that there was a job for him but it only consisted of two days per week and his contract is for four days per week.  The Complainant stated that he was more than accommodating with the Respondent in reducing his hours in order to help get the company back on its feed.

The Complainant was asked how he was dismissed on 03/01/2024.  He stated that he was told by the Respondent that if he did not agree to the three days per week he could leave.  It was put to the Complainant that he did not agree to the three days per week and then walked out after handing in his notice.  He stated that he did not resign.  He stated that his handwritten notice was for the redundancy process.

The Complainant was asked if he was dismissed or made redundant.  He stated that he was dismissed.  It was then put to the Complainant that if he was dismissed why would he give four weeks’ notice.  He stated that he understood that with his length of service he was entitled to four weeks.

It was put to the Complainant that if he was made redundant he would be required to work up until a certain date and he was not.  The Complainant stated that he was required to work four weeks’ notice.

In response to some questions from the Adjudication Officer the Complainant confirmed that he never received any documentation in relation to his alleged dismissal or redundancy.  The Complainant also confirmed that there were no discussions with him in relation to possible alternatives to redundancy.

In relation to his attempts to mitigate his loss the Complainant confirmed that he submitted some on-line applications but he did not provide any of these to the WRC.  He was on Jobseekers allowance of €232 per week from January 2024 until 14 October 2024 when he commenced employment with a new employer.  He is now working 40 hours per week and is paid €14.40 per hour.

Closing submission:

In a closing submission the Complainant stated that when the Respondent changed his employment his position was untenable.  He was told by the Respondent to leave if he did not agree to the new hours.  There was a discussion with the Respondent about redundancy the Respondent arrived at their meeting with a clipboard in order to sign up and be made redundant.

Mr Paul Lamb gave evidence on affirmation on behalf of the Respondent.   Mr Lamb is the owner of the business.  Hr confirmed that the Complainant is working two days per week since the COVID-19 pandemic.  He confirmed that the Complainant was on social welfare payment for the other days  and he was told by the Complainant that he would lose social welfare if he worked three days per week.  He provided a letter to the Complainant confirming his work hours.  Mr Lamb gave evidence that the decision to work two days per week was made by mutual agreement with the Complainant.

Mr Lamb was asked about a letter he issued to the Complainant on 22/12/2023.  He confirmed that this letter was issued when the Complainant stated that he did not know who he was working for anymore.  This letter confirms that he was moving from a sole trader, Mr Curry, to a limited company with the name of Brave Flavour Limited.  This letter confirmed “that your employment rights and existing terms are not affected by this change”.  Mr Lamb stated that pay slips issued to the Complainant had the name Brave Flavour Limited on it.  These were provided to the Complainant in October 2023 as part of his review by Social Welfare along with a copy of the business registration certificate.

Mr Lamb confirmed that the Complainant accepted these documents and that he only took issue with the change of name in December.   Mr Lamb gave evidence that he wanted to address any concerns in the letter of 22/12/2023 which he handed to the Complainant.  Mr Lamb stated that he was satisfied that he Complainant knew who he was working for and that none of his rights were affected by what was a switch over from sole trader to a limited company.

Mr Lamb was asked why the Complainant took issue with the change in status.  He explained that the Complainant was one of three workers in his factory.  The Complainant was explaining to the other two workers that they could institute redundancy proceedings due the change of the name.  Mr Lamb also confirmed that he believed the Complainant did not want to work for him anymore.

Mr Lamb confirmed that he did not discuss redundancy with the Complainant.  He was three workers employed and he needs all three.  Mr Lamb gave evidence that he was not trying to save costs or reduce staff – the process in his factory required a lot of manual work and he needed three people.

Mr Lamb was asked if he agreed a redundancy situation with the Complainant.  He stated that he did not but that the Complainant in a text message said that he was entitled to institute redundancy proceedings.

Mr Lamb was asked what his understanding was of the letter submitted by the Complainant on 03/01/2024.  Mr Lamb stated that the Complainant did not want to work for Brave Flavour Limited and once he left we could then initiate redundancy proceedings.

Mr Lamb was asked if he issued any documentation in relation to redundancy and he confirmed that he did not.  He has only three workers.  Mr Lamb confirmed that the Complainant sent him a RP77 form seeking to initiate a redundancy process.  Mr Lamb stated that when he received this form he believed the Complainant was doing what he said he would do.

Mr Lamb was asked if he dismissed the Complainant.  He stated that he could not understand why the Complainant would say he was dismissed.  Mr Lamb stated that he only had three workers and would never do that as he would struggle to get the work done.  Mr Lamb stated that the Complainant was working for him for about 10 years and he did not ask him to leave.  To ask him to leave would be a contradiction of the letter he had issued to him.

In response to a question from the Adjudication Officer Mr Lamb confirmed that one of the three employees is still employed by him and he did replace the Complainant and this took about 4-6 weeks.

Cross examination – Mr Paul Lamb:

Mr Lamb was cross examined by the Complainant.  He was asked to confirm who the three workers were that he was referring to.  Mr Lamb identified those three, one of whom was the Complainant and another who is still working for him.

It was put to the witness that there were a number of other workers there for some periods of time.  Mr Lamb confirmed that he brought in his son and some of his friends to assist on occasions.  Mr Lamb was asked why those people were brought in rather than increase the days the other staff worked.  Mr Lamb stated that the days his three staff, including the Complainant, worked were mutually agreed.  In relation to the Complainant Mr Lamb stated that he told him he would lose an amount of social welfare and this would be greater than days’ pay. Mr Lamb stated that he was told by the Complainant that he would get €40.00 for a day’s work but €130 from social welfare for a day. Mr Lamb stated that the days were agreed as they were convenient and agreeable to the Complainant.

It was put to Mr Lamb that he was saying that the Complainant agreed to two days and Mr Lamb confirmed that “everything we done was by mutual agreement”. 

It was put to Mr Lamb that he told the Complainant (and his colleague) that they would have to leave if they did not agree to work three days.  Mr Lamb stated that it did not make sense.  He was only working two days and he was asking him to work three days.   Mr Lamb was asked if it was his evidence, on affirmation, that he did not ask the Complainant to leave on 03/01/2024.  Mr Lamb confirmed that he did not ask the Complainant to leave.

It was put to Mr Lamb that in his letter of 14/12/2023 he stated that prospects for the business were good but he brought in other people to do the work.  Mr Lamb confirmed that he had already explained why he done this.

Mr Lamb was asked if he was saying in evidence that he never spoke about redundancy on 03/01/2024.  Mr Lamb stated that his evidence was that the Complainant said that he would give four weeks’ notice and commence redundancy proceedings.   Mr Lamb stated that he did not make the Complainant redundant and he did not dismiss the Complainant.

Closing submission:

Ms Lamb on behalf of the Respondent made a closing submission.  She outlined that as the fact of dismissal was in dispute the burden of proof was with the Complainant.  He did not provide any evidence in relation to a breach of his contract or any fundamental breach.

In relation to the redundancy complaint the Complainant provided no evidence to confirm that there was an agreement in relation to redundancy.  The Complainant made various references to say that he would institute redundancy proceedings.  It is clear that the Complainant resigned on 03/01/2024.  The Complainant accepted the job for two days per week and as the Respondent only had three staff in total it would make no sense that he would make anyone redundant.

Ms Lamb said that the Labour Court case of Adina Predut v Rapier Contract Services Limited [UDD185] is relevant as it found that as the Complainant in that case exercised her right to transfer and no dismissal took place.

Ms Lamb made an application to submit the three payslips and certificate of company registration which were referred to.  This was granted by the Adjudication Officer and Ms Lamb agreed to copy these to the Complainant.

CA-00065414-001: 

The Complainant has submitted a complaint seeking adjudication arising from his dismissal from his employment with the Respondent on 03/01/2023.  As the fact of dismissal is in dispute the burden of proof rests with the Complainant to prove that he was dismissed.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“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,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Section 6 of the Act stipulates as follows:

‘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.

 (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.

(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.

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that his resignation was justified.

In supporting his decision to terminate his employment the Complainant will have to prove that the circumstances of his dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment the Complainant’s evidence was that no breach occurred. 

In examining the conduct of the employer the only evidence adduced at the hearing was that the Complainant tendered his resignation on 03/01/2024 after meeting with the Respondent and refusing to sign an agreement to work three days per week.  The Complainant did not raise any grievance in relation to this request.  The Complainant also contends that by asking him to leave the Respondent initiated a dismissal.  There is no evidence to substantiate this assertion.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

This is a situation where the background involved the Complainant had an issue with the Respondent increasing his workload and taking on casual workers to assist with the increase demand rather than provide him with additional days.  Yet, when he was offered to sign up for additional days he declined and took the view that he might be entitled to a redundancy package as the Respondent had now changed status from sole trader to limited company.  There was no uncertainty about the fact that his terms and conditions would not change.

The Complainant worked for the Respondent for almost 10 years. During that time various changes took place by mutual agreement and I am satisfied that the Respondent was entitled to seek to offer additional days to the Complainant (and his two colleagues).  The Complainant has not advanced any credible evidence so to why he considered that a dismissal had occurred.

Based on the evidence and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”.

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-00065414-002:  The Complainant is seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  The Complainant is seeking a redundancy payment.

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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.

(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”.

Redundancy occurs where an employee’s position ceases to exist, and the employee is not replaced.  Any employee aged 16 or over with 104 weeks’ continuous service with an employer is entitled to a statutory redundancy payment in this situation.  In this case it is not disputed that the Respondent did carry on the business for the purpose of which the Complainant was employed.  The Respondent confirmed at the hearing the Complainant was an employee since July 2011.  In those circumstances the Complainant was in continuous service. The evidence of the Respondent is that there was work there for the Complainant and sought to increase the number of days work that would be available to the Complainant.

Having considered the evidence and circumstances in the context of the definitions outlined in the Act I find that the Complainant was not dismissed by reason of redundancy and is therefore not entitled to a statutory redundancy lump sum.

CA-00065414-001:  I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-00065414-002:    I find that the Complainant was not dismissed by reason of redundancy and is therefore not entitled to a statutory redundancy lump sum.

This appeal of the respondent’s decision that he was not entitled to a redundancy payment is not allowed.

Dismissal in dispute.  Redundancy payment.