Complainant

Respondent

Parties

Sergey  Nosov

Md Burns & Co Ltd  trading as More 4 Less

Representatives

Gerard Kennedy B.L. instructed by Kevin O'Gorman & Company Solicitors

Cillian McGovern B.L. and Barry Crushell Solicitor,  Crushell & Co Solicitors

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-00041409-001

04/12/2020

The Complainant made a single claim:

A claim pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was in dispute. The Complainant was employed by the Respondent from the 14 March 2011. In August 2022 the Respondent transferred its undertaking to another entity. The Complainant sought to work for this entity but when learning that the available work was in a shop the Complainant did not take up duties and his employment ended in early August 2022. The Complainant alleged that he had been dismissed by the Respondent on the basis that his position a Dispatch Manager in the Respondent’s warehouse was not available in the transferee’s business following the transfer. 

The Complainant’s contract of employment was unilaterally changed by the Respondent through a subterfuge which purported to transfer the Complainant to a shop in Bawnogue when he was out on sick leave. It was alleged that the Complainant was duped into agreeing to work in the shop as a means to prevent the Respondent honouring its obligations to him. It was alleged that the decision to transfer the Complainant’s employment to the Bawnogue shop was made when the Respondent was aware that the transfer of ownership of that shop from the Respondent to the entity which acquired it was imminent. It was alleged that despite the Respondent’s assurances to the Complainant that his conditions of employment would transfer, no position similar to that of Dispatch Manager was available after the transfer. The Complainant was unfairly dismissed from his role as Dispatch Manager when the proper course of action would have been to make his role redundant.

The Complainant delivered written submissions and gave evidence on affirmation. He was cross-examined by Mr. McGovern B.L.

The Complainant commenced employment with the Respondent on 14 March 2011. His position was general operative and his manager was PB. His duties included picking and packing orders, assisting in scanning orders, cleaning, tidying, warehouse maintenance, loading and unloading deliveries, assisting in stock checks and any other duties assigned by the manager, acting on his/her behalf.

In March 2020, on foot of the impending covid 19 crisis, the Respondent company faced serious commercial and operating difficulties. On the advice of government and the prevailing health and safety guidelines at the time, all of the premises owned by the Respondent company were closed and all employees were advised to stay at home. The only employee to remain at any of the Respondent premises was Mr Mark Burns and his son for a period of March 2020 until June 2020. Faced with impending financial difficulties and with no immediate prospect of a return to work available for the majority of employees, a number of employees were selected for potential redundancy including the Complainant. Given the prevailing health and safety guidance at the time, the Respondent was unable to physically meet with employees to discuss their future with the company. Instead, calls were scheduled by video conference or over the phone. On 29 May 2020, the Respondent formally notified the Complainant, during a pre-arranged meeting, that, due to the turndown in business, the company had undertaken a review of their resourcing requirements relative to the work available to them. It was noted that, as a consequence of that review, the Respondent company had identified a potential need to cut costs which unfortunately meant the possibility of implementing a number of redundancies. This being the case, the Respondent wrote to the Complainant, on 29th of May 2020, notifying the Complainant of the risk of his role being made redundant. The letter of 29 May 2020 set out the Respondent’s basis for their review with regard to the proposed changes to their resourcing requirements, and to advise that any suggestions with respect to potential measures to avoid redundancy, would be most welcome.

The Respondent scheduled a second call with the Complainant on the 8th of June 2020 to discuss any potential alternatives to redundancy. A third follow up call took place between the Respondent and the Complainant on 12 June 2020. The Complainant had advised that he was ready to undertake any alternative work and, as a consequence, the possible transfer to another store belonging to the Respondent was discussed. The Complainant was due to but did not in fact present for work at this store.

On the 30 June 2020 the Respondent wrote to the Complainant advising that the store where the Complainant was to work had been transferred to another entity and that his employment (including his pay, conditions and service) was to transfer to that entity.

The Complainant was did not present for work at the store. The transfer of the store from the Respondent to the other entity took place on the 4th of August 2020. The Respondent contended that its liability to the Complainant ceased after that date and that any claim should have been directed against the entity to which the shop business was transferred.

The Respondent delivered written submissions. The Respondent called one witness, Mr. Mark Burns the Respondent’s Managing Director, who gave his evidence on affirmation and was cross-examined by Mr. Kennedy B.L.

Dismissal was in dispute.

It was agreed that the Complainant commenced employment on the 14th of March 2011 on foot of a contract of employment. 

The Respondent owned several retail outlets which were serviced by its warehouse. With the onset of the Pandemic in March 2020 all but one of the retail outlets closed. The Respondent initially contemplated making its staff redundant and to that end, a consultation process was undertaken in May of 2020 with all affected employees including the Complainant. During that process the Complainant was asked whether he would work in the retail outlet in Bawnogue which was still trading during the lockdown due its being designated an essential service. In mid-June 2020 the Complainant advised the Complainant that he was being assigned to work in the shop. The Complainant was not happy with the reassignment but did not specifically raise an objection to it by way of written correspondence.

Instead of implementing redundancies as originally planned the Respondent arranged for the transfer of its undertaking in the Bawnogue Shopping Centre to another Company (the Transferee) and this transfer took place on the 4th of August 2020. Prior to the transfer taking place the Respondent wrote to the Complainant on the 30th of June 2020 advising him of the imminent transfer of Respondent’s interests in the Bawnogue retail outlet to the Transferee and assuring him that his terms and conditions of employment would be unaffected by the transfer.

The Complainant never presented for work at the Bawnogue store. The Complainant was not contacted by the Transferee to discuss work with that entity. However, In August 2020 the Complainant made enquiries with the Transferee and eventually an email exchange took place between the Complainant and the Transferee which was submitted by the Complainant and is dated the 2nd of September 2020, as follows:

“Thank you for explaining to me your situation, unfortunately I only have the contract of employment signed by you back in 2011 for the position of General Operative.

We do not have a position of Dispatch Manager within the shop, nor the Company, nor do we have something similar.

Your terms and conditions remain[] to [the] same under TUPE and I must flag that during the transfer there was never a mention of different positions for staff members working in Bawnogue apart from sales assistants and the store manager.

If you are looking to return to work please provide us with a fit to work certificate and I will instruct …the store manager to contact you in relation to roster availability”

The same stream contains the Complainant’s reply as follows:

              “Many Thanks

A role that is very different from a shop worker. The role of a shop worker involves a lot of contact with the public and is one that I would be uncomfortable with…It is over 9 years since I worked in a shop. As far as I am concerned you have to provide me with a similar job on the same terms that I had previously.

I am now fit to return to work but since nobody has guaranteed in a similar job to what I left I have to look for alternative employment. However I will be holding the company responsible for any shortfall in my wages. I would have thought I am entitled to redundancy since you cannot guarantee me my previous job…”

It was not disputed that a transfer of undertaking had occurred as described above. However the Complainant contended that his particular employment did not transfer in that the position which he held with the Respondent pre-transfer was that of “Dispatch Manager” as distinct from that of General Operative and the latter position was the only one which was available with the Transferee.

Mr. Mark Burns the Respondent’s Managing Director gave evidence. He said that the Complainant was employed as a General Operative as so described in his contract and he worked in the Respondent’s warehouse. He began by doing ‘picking’ in the warehouse, but he migrated towards ‘scanning’ as time went on as he preferred this task to that of picking. The Complainant was not a manager as there were two managers in charge: AF and PB. Mr. Burns denied that the Complainant supervised staff and he said that the Complainant was never given the title of, or addressed as, Dispatch Manager, which was a title which the Complainant gave himself. The Complainant did get pay increases, but these were not awarded for taking on additional duties or taking a management or supervisory role. It was put to Mr. Burns that the Complainant was included in a WhatsApp messaging group for managers, but Mr. Burns said that other non-managers were also included in this group. Text messages regarding various duties were put to Mr. Burns as evidence that the Complainant was engaging in managerial/supervisory duties, but Mr. Burns said that the tasks discussed in the texts were all common tasks carried out by a general operative.

In his evidence on this issue, the Complainant said that he was originally employed as a General Operative but that his duties expanded, and it was his understanding that he would eventually be promoted to replace the manager of the warehouse. It was put to the Complainant that the duties associated with the Complainant’s role pre-transfer were not substantially different to the duties applicable to the shop-work which was available to him after the transfer, but he did not agree. He described his duties which he said included giving orders to and supervising the pickers in the warehouse who, he said, followed his orders. He accepted that he was not referred to or addressed as Dispatch Manager. As regards supervising staff the Complainant expressed the belief “that he did manage them a bit”. He accepted that he was not given training in logistics or management. He agreed in cross-examination that the directions given to him were also given to other warehouse operatives, but he said that he was never told not to direct the work of the pickers. The Complainant said that the job in the shop was not the job he wanted to do, and it was definitely different to the job he had been doing for the Respondent prior to the transfer.

I find as a fact that the Complainant was reassigned to work in the Bawnogue Shop in June 2020 in circumstances where he was supposed to present for work in that store. The fact that he did not do so does not affect the reality of this assignment nor do I accept that in making this reassignment the Respondent was acting in bad faith, seeking to manipulate the Complainant into losing his employment or attempting to remove him from employment due to being out sick. Accrordingly, I find that as at the date of the transfer of the business of the Bawnogue shop in August 2020, this was the location where the Complainant was assigned to work and it follows that his employment transferred to the Transferee subject to the condition that the employment which transferred was the same as that which the Complainant held prior to the transfer.

The Complainant maintained that his contract had developed into a role which was not that of General Operative but was closer to the position of Dispatch Manager. Although he accepted that such a title was not conferred on him in writing at any stage by the Respondent, he nonetheless maintained that his duties had evolved significantly such that by the time of the transfer he was not a general operative. This being so, he contended that his contract only transferred if such a position was available in the Transferee’s business. When he discovered that such a position was not available, he did not take up the duties which were available in the Transferees business.

By reference to the totality of the evidence heard and the submissions made, I find that I prefer the evidence of the Respondent to the effect that the duties applicable to the Complainant’s employment were at all times consistent with the general description of the duties set out in his contract and that any differences in the manner in which the Complainant’s duties had developed throughout the course of his employment did not change sufficiently to alter the essential nature of this contract and were not consistent with the duties of Dispatch Manager or any other similar managerial or supervisory role, howsoever described.

I find as a fact that as at the date of the transfer of in August 2020, the Complainant held the position as described in his contract, that of General Operative, that he had been assigned to work in that capacity to the Bawnogue store prior to the transfer, that the details of that employment were notified to the Transferee and that on the date of the transfer the Respondent was discharged from any further liability to the Complainant and did not dismiss the Complainant whether unfairly or at all. In the light of this finding there was no liability to the Complainant to offer him redundancy since his employment had transferred and thus there was no redundancy. I further note that the Complainant did not make a claim against the Respondent pursuant to the Redundancy Payments Acts. 

It may well be the case that unlike the Respondent, the transferee did not consult effectively with the Complainant regarding the transfer of his employment such that the Complainant had to make enquiries with the transferee which eventually resulted in the email exchange quoted above. Thereafter the Complainant did not engage further with the transferee, nor did he make a claim of any sort against this entity.

In conclusion I find that the Respondent did not dismiss the Complainant and that his claim for unfair dismissal against the Complainant cannot succeed. 

CA-00041409-001 The Complainant was not unfairly dismissed.

Unfair Dismissal – Transfer of Undertaking – Whether Complainant was Dispatch Manager or General Operative