Complainant

Respondent

Parties

Adam  Campion

Fairco Limited

Representatives

Collier Law Solicitors

Management Support Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00056402-001

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00056402-002

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00056402-003

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00056402-004

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00056402-005

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00056402-006

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00056402-007

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00056402-008

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00056402-009

28/04/2023

The complainant referred various complaints to the Commission on 28 April 2023 in connection with his employment and its termination by the respondent.

The respondent submitted that it had at all times acted fairly and reasonably towards the complainant and that the complainant’s employment was terminated by reason of redundancy. 

The complainant was employed with the respondent from 15 November 2021 until 25 November 2022. 

The complainant was not provided with a contract of employment for his role as trainee fitter with the respondent until 17 May 2022.  The complainant worked hours that were different from those detailed in his contract and he was not notified in writing of a change to his terms of employment. 

The complainant was a member of a 2-person crew and most days he did not get rest breaks. 

The complainant’s employment was terminated on 25 November 2022 without prior warning.  The complainant was told there wasn’t enough work.  It was submitted that there was not a genuine redundancy situation and/or that the complainant had been unfairly selected for redundancy.

The complainant was not paid one week’s pay in lieu which he had been told he would receive.    

Summary of complainant’s sworn evidence

The complainant applied for a job as a stores or warehouse operative.  He was given a contract of employment but could not recall getting a job description.  The complainant worked in the warehouse on commencement of employment unpacking deliveries and getting everything ready for installation jobs.   In or around January 2022, the complainant was asked by Mr Donoghue whether he wanted to go out on site with a senior fitter to help out. 

On a typical day, the complainant arrived at the workshop at 7.00am and picked up the job bag.  He got the product for the job ready to be loaded at the front of the warehouse.  On Thursday and Friday, for smaller jobs, the arrangement might be to meet the other crew member on site rather than going into the warehouse.  After leaving the warehouse, the complainant with the other crew member would pick up lunch and a cup of tea on the way to the job.   The complainant outlined what the crew did on arrival at the job location.  More often than not, the crew would have to wait an hour or two before they commenced work for payment issues to be sorted out.   Most days, work would finish at around 5.00pm.  The complainant did not go home at 3.30pm every day and his working day was not determined by reference to an on-completion basis. 

The complainant outlined an interaction with a customer on site on 8 November 2022 in respect of which the other crew member got annoyed with the complainant.  The complainant worked with a different senior crew member after this.

On 25 November 2022, the complainant attended work as normal.  He was helping load up the van when Mr Donoghue asked could he have a chat and brought the complainant to the office.  The complainant was told there was no work and staff had to be let go.  The complainant told the other crew member that he had been let go and wouldn’t be working that day.  The complainant received his final payslip on 29 November 2022.  His final pay covered working time from 21 to 25 November.

There were two other trainee fitters in employment with the complainant at the relevant time. These trainee fitters started work 2/3 months after the complainant.  The complainant was the only one that had commenced work in the warehouse.

Cross-examination

The complainant was given a contract of employment when he started with the respondent.  The complainant assumed the contract dated 15 November 2022, produced by the respondent, is the contract he received. 

It was agreed between the complainant and the other crew member that he would be at the warehouse for 7.30am.  The complainant chose to get there earlier than 7.30am.  During the course of the working day and after leaving the warehouse, the complainant would take a break for a cup of tea and something to eat. They would also have a break for a cup of tea when a customer offered it.  Most days, they would also stop work for lunch.  They would then work through the afternoon until finish time.  Ninety per cent of the time working with this particular crew member, the complainant worked up until 5.00pm or after.   The complainant raised an issue with Mr Donoghue in May 2022 regarding working long hours and not learning enough on the job.  In July 2022 the complainant spoke again to Mr Donoghue about a lack of training and the hours he was putting in.  He did not speak with Mr Donoghue at this point about working excessive hours.  In his last 3 weeks of employment whilst working with another crew member, the complainant finished work between 4.00pm and 5.00pm.  The complainant accepted that his hours of work were agreed with his crew leader as per his contract of employment and accepted that what happened in practice was as stated in the contract.  

The complainant did not know where the May 2022 contract came from.  It is identical to the November 2021 contract he received, just with a different date.   The complainant telephoned Mr Donoghue in August 2022 after completing his 9-month probationary period. 

The complainant did not follow the respondent’s procedures in the event of not receiving rest breaks. 

The complainant’s crew colleagues did not express dissatisfaction to the complainant about his performance.  One crew leader would have been snappy over mistakes.  The complainant never said to anyone that he was not happy working with this crew member. The complainant was the only fitter let go.  There was no slowdown in sales and the warehouse was packed.  Two trainee fitters had started in employment with the respondent after the complainant; the complainant did not have the least service.   The complainant had not been aware that other staff had been let go and was not aware of the company’s financial situation.  The complainant accepted that he received wages for work done, holiday pay and one week’s salary in lieu of notice.

The complainant was unable to answer questions regarding an email he sent to the company in February 2023 stating that he had never received his employment contract and why, in April 2023 in his complaint to the WRC, he said he hadn’t taken up new employment when in fact he had.  

In re-examination, the complainant confirmed receiving an employment contract within 28 days of commencement of employment.  The complainant had no financial loss from 16 January 2023 when he started a new job. The complainant had actively looked for employment after his employment with the respondent ended.

The respondent issued the complainant with a written statement of his terms of employment in November 2021 when the complainant commenced employment as a trainee fitter.  The complainant signed off on all starter forms on 18 November 2021.  The complainant as a trainee was assigned to work with a senior fitter.  The 2-person crew collected items from the warehouse sufficient for a number of days work and would be on the road fulfilling jobs until they needed to come back to the yard to collect more equipment.  The work was weather dependent and once they left to go on-site, the crew were in control of their working time and agreed breaks.  There had been no change to the complainant’s terms of employment. 

In November 2022, the respondent business was impacted by rising costs and a significant drop in its fitting business.  The respondent let 6/7 employees go in the September to November period.  The respondent had to make cutbacks and the complainant was the shortest serving trainee fitter in the company.  The respondent recruited 3 people after the complainant was made redundant; this was in February/March 2023 to fulfil a project it had secured. 

In the event of a finding that the complainant was unfairly dismissed, the preferred remedy was compensation.  The respondent fundamentally disagreed with the complainant’s account of his employment to the Workplace Relations Commission and the complainant’s re-instatement or re-engagement was not appropriate in such circumstances.  The respondent also currently employs a full fitting team and has no available positions.

Complaints under the Organisation of Working Time Act 1997 had been referred outside of the statutory timeframe.

Summary of sworn evidence of Mr Brian Donoghue

The witness has been with the respondent company since 2015 and is a director of the company. 

The complainant commenced employment with the respondent as a trainee fitter on 15 November 2021.  On commencement, the complainant worked in the warehouse to have an understanding of the product and how to manually handle.  Most fitters would start in the warehouse.  He was then assigned to a senior crew leader.  Crews would be mixed on occasions.  

The respondent’s jobs are structured according to job size.  Typically, the larger work is done Monday to Wednesday and smaller fitting work on Thursday and Friday.  A crew would load up with required equipment from the yard in the morning from 7.15 to 8.00am and arrive on site between 8.00am and 10.00am.  They could get lunches and have a break on the way to the site.  They would have breaks and finish up on site at around 3.30pm and journey home.  The fitters are not measured in terms of productivity.  The senior fitter with whom the complainant had been assigned to work was very experienced and had worked in the sector for a long time.  The complainant never raised any issue about not getting breaks at work. 

Towards the latter end of 2022, the respondent had difficulties in its business. It was one of the most challenging times in manufacturing due to the energy crises and a rise in interest rates which meant a fall in pipeline sales.  A decision was taken to reduce headcount in the business.  Contractors were let go first, there was a reduction in staff numbers in the warehouse and showhouse, and a personal assistant was not replaced.  There was an odd number of fitters for crews on the fitting team and the complainant had been the last fitter employed.  The complainant was selected for redundancy on this basis. 

The witness outlined a conversation with the complainant in which the complainant had sought a pay rise after completion of his 9-month probationary period. 

There was no issue with the complainant’s performance or his work.  In relation to 25 November 2022, the witness asked the complainant to meet with him in the morning.  He told the complainant he could bring a representative and that the meeting was to discuss his future employment.  The complainant did not bring a representative.  The witness told the complainant about the difficulties with pipeline sales and that the impact on fitting had not been anticipated.  The witness told the complainant he would be paid his annual leave entitlement and one week’s pay in lieu of notice, and that a reference would be available if required.  The witness considered the fall in pipeline to be long-term in nature. 

The witness confirmed that a payslip with a payment date of 29 November 2022 was the complainant’s final payslip and related to salary and accrued annual leave entitlement.  The complainant was paid a week’s pay in lieu of notice by bank transfer and this was confirmed to the complainant in an email from the accounts department on 7 December 2022.

Further to a request from the complainant, he was sent copy of his contract of employment on 1 December 2022.   The complainant emailed the respondent’s accounts on 22 February 2023 stating that he wished to appeal his dismissal using the company’s grievance procedure and requested copy of his employment contract together with copy of the grievance procedure.  The respondent sent the complainant a further copy of his contract on the same date.  It did not hear anything further from the complainant in relation to an appeal or any other issue until it received notice of his complaint to the WRC. 

Three people were employed by the respondent in 2023 based on their experience for a particular job the respondent had secured.

Cross-examination

The witness was asked about a contract attached to the complainant’s submission which detailed a date of 17 May 2022 beside his signature.  The witness questioned the signature on the basis that it didn’t look like his signature.  It was not the witness’ signature and he did not know where the document had come from.  He contrasted it with the contract attached to the respondent’s booklet of documentation. 

The witness did not accept that the complainant had initially been employed as a stores or warehouse assistant. 

The installation manager creates the installation schedule and jobs are allocated to crews based on crew experience.  The installation schedule is published on a Thursday for the following week.  Fitting crew collaborate on different jobs.  The structure of the fitting crew is of a crew leader and a more junior number 2.  At different stages, the complainant would have worked with all the crews. In the couple of weeks before the complainant’s employment terminated, he was working with a different named crew leader. The witness was not aware of an incident in early November 2022 between the complainant and his former crew leader until the complainant’s submissions to the WRC.  

The respondent employed approximately 60 people at the time of the downturn in business in September/October 2022.   There were 10 fitting teams with a headcount of 20; 3 contractors were included in this number.  The respondent currently employs 18 fitters.  The witness consulted with the owner of the business about operating overheads and the decision to reduce numbers.  They looked at numbers and identified that things were going the wrong way.  They needed to reduce costs and maintain sales.  They could not control the variables; product prices were increasing on a daily basis.  The respondent looked at what was within its remit to control.  It didn’t have work for all the people.  The scheduled work for the fitting team was decreasing and there was not enough work for all the teams.  The respondent in the first instance spoke with the contractors on the fitting team and let them go.  The approach taken in relation to the remaining fitters was that there was an odd number remaining and the complainant was selected for redundancy based on his service. The complainant was the only employee from the fitting team let go.  The complainant was selected on the application of last in, first out.   The respondent did not consider voluntary redundancy or a lay-off or short-time working arrangement.  The witness was asked about there being other trainee fitters at the material time.  The witness acknowledged that there were 2 trainees but to his knowledge the other trainee had longer service than the complainant.  At the end of the day, the longest serving and most experienced fitters were retained. A commercial decision was taken that would benefit the business.  A temporary wage reduction was not considered because the respondent believed that in such circumstances they would lose the experienced fitters.  On 25 November 2022, the witness asked for the complainant to be informed that the witness wanted to meet with him that morning and that he could bring a representative.  The witness explained to the complainant the circumstances and reasons and informed him that where it didn’t have work for him at the moment, it would have to let him go.    The witness empathised and told the complainant that he didn’t need to work that day as he understood it was a shock. He also told the complainant he would receive one week’s notice in lieu.  The respondent did not get external advice on the situation, it was discussed internally.

CA-00056402-001 (Unfair Dismissals Act 1977)

The claim of unfair dismissal is in respect of the termination of the complainant’s employment on 25 November 2022.  It was submitted on behalf of the complainant that it was not a genuine redundancy situation, that he was unfairly selected for redundancy in breach of his contract of employment and that his performance and issues between the complainant and his crew leader were factors in the termination of the complainant’s employment. The respondent disputed the complainant’s claims in this regard and maintained that the complainant was fairly dismissed by reason of redundancy.

Section 6(1) of the Unfair Dismissals Act 1977 (the “1977 Act”) deems a dismissal to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

A dismissal from employment on grounds of redundancy comes within the scope of a fair dismissal as provided for in s.6(4) of the 1977 Act:-

“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) …

(b) …

(c) the redundancy of the employee, and …”

Redundancy is defined in section 7(2) of the Redundancy Payments Acts 1967 to 2014, as amended, (the “1967 Act”).

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:-

“(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 …”

Under the 1977 Act, the respondent bears the burden of proving that the termination of the complainant’s employment resulted wholly or mainly from redundancy.

The respondent’s evidence of difficulties in its business towards the latter end of 2022 was not materially challenged. 

The respondent’s evidence was that it took the decision to reduce headcount and the complainant was let go in circumstances where there was an uneven number of fitters on the fitting team and the complainant had the least service.   This would appear to come within section 7(2)(c) of the 1967 Act, namely that the dismissal is attributable wholly or mainly to:-

“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, …”

However, it was asserted that this was not the whole or main reason for the complainant’s dismissal, and the complainant put in issue the selection of his role for redundancy.  Section 7(2)(c) of the 1967 Act necessarily involves selecting positions for redundancy and retaining others and in this instance the respondent must demonstrate the fairness and reasonableness of the selection of the complainant’s role for redundancy.

The complainant’s evidence was of two trainee fitters joining the respondent after he was employed.  It was common case that the only fitter made redundant in or around the relevant time was the complainant. 

The respondent did not demonstrate at the hearing how the complainant’s service compared vis-à-vis other fitters.  This was something that would have been relatively straightforward for the respondent to establish and, in my view, it was material to its defence that the complainant was selected for redundancy based on his service. 

There was no information or consultation with the complainant regarding a redundancy situation or the method used to select the complainant’s role for redundancy.   There was also no consultation with the complainant on alternatives to redundancy and I note in this regard the respondent’s account of the conversation on 25 November 2024 whereby it informed the complainant that as it didn’t have work for him at the moment, it would have to let him go. On balance, and having regard to the fact that there had been an issue between the complainant and his crew leader earlier in the month which resulted in the complainant’s move to another crew, I find that the complainant’s dismissal was not wholly or mainly by reason of redundancy and further that the respondent has not established that his selection for redundancy was fair and reasonable.

It follows that the complainant was unfairly dismissed. 

Given my finding, the complainant is entitled to redress which is appropriate having regard to all the circumstances.  Both parties confirmed at the hearing that appropriate redress in the event of a finding of unfair dismissal was compensation.  Furthermore, I am satisfied that re-instatement or re-engagement are not appropriate where the complainant took up new employment on 16 January 2023 and remains in that employment.

I am satisfied that the complainant made reasonable efforts to secure alternative employment after 25 November 2022 resulting in a new job in January 2023.

The complainant is paid more in his new employment than what he was paid by the respondent.

I measure the financial loss attributable to the dismissal to be €3,600.00 gross, which is the equivalent of 6 weeks’ pay in employment with the respondent, and I determine this sum to be just and equitable compensation having regard to all the circumstances.

CA-00056402-002 (Minimum Notice & Terms of Employment Act 1973)

I find that this complaint that the complainant did not receive his statutory minimum period of notice or payment in lieu is not well founded.

Section 4 of the Minimum Notice & Terms of Employment Act 1973 (the “1973 Act”) requires an employer to give an employee minimum notice of termination, which notice is calculated by reference to service. 

Section 7 of the 1973 Act enables waiving the right to notice and accepting payment in lieu.

Under his contract of employment, the complainant’s right was to statutory notice or payment in lieu.  The complainant received one week’s pay in lieu of notice.  In the circumstances and having regard to the complainant’s service in employment from 15 November 2021 to 25 November 2022, there has been no breach of section 4 of the Minimum Notice and Terms of Employment Act 1973.

I find that this complaint is not well founded.

CA-00056402-003 (Minimum Notice & Terms of Employment Act 1973)

I find that this complaint that the complainant did not receive his rights during the notice period is not well founded.

The complainant’s rights during the notice period was to 1 week’s payment in lieu of notice.  The complainant received this payment in lieu.  The complainant has not therefore foregone any rights.

CA-00056402-004 (Minimum Notice & Terms of Employment Act 1973)

This is a duplicate of CA-00056402-002 and/or CA-00056402-003.

Accordingly, I find that this complaint is not well founded.

CA-00056402-005 (Terms of Employment (Information) Act 1994)

I am satisfied that the complainant was provided a contract of employment in respect of his role as trainee fitter on commencement of employment and find that there was no change to the particulars of the contract provided to the complainant.  The contract expressly stated that it incorporates the requirements of the Terms of Employment (Information) Act 1994 (the “1994 Act”).

On behalf of the complainant, it was submitted that the complainant had not been given a statement on commencement of employment and that during the course of the complainant’s employment there had been a change to the complainant’s role and job description. 

On the complainant’s own account, he was given a contract of employment on commencement of employment, and he read that contract on receipt.  I am further satisfied having regard to his evidence that the contract he received was the contract signed by Mr Donoghue and dated 15 November 2022.  That contract detailed the complainant’s role as that of trainee fitter.  It was common case that the complainant contacted Mr Donoghue in August 2022 on completion of his 9-month probationary period looking for a pay rise.  I am satisfied that the respondent employed the complainant as a trainee fitter and that this did not change in the course of his employment with the respondent.  The complainant did not assert or give evidence of any other changes to the particulars of his terms of employment.

I find that this complaint of a contravention of section 5 of the 1994 Act is not well founded.

CA-00056402-006 (Organisation of Working Time Act 1997)

The complaint referred under section 27 of the Organisation of Working Time Act 1997 (the “1997 Act”) was that the complainant worked 10 consecutive hours and did not get rest breaks.  There was a reference in the complaint form to the complainant receiving 20-minute breaks.

The complainant’s evidence was of breaks received during his working day and of delays in work commencing on arrival on site.

I find that there was no evidence before me of a contravention of section 12 of the 1997 Act within the 6-month period prior to referral of the complaint to the Commission.  In the circumstances, I find that this complaint is not well founded.

CA-00056402-007 (Organisation of Working Time Act 1997)

The complaint of a contravention of section 15 of the Organisation of Working Time Act 1997 (the “1997 Act”) was referred to the Commission on 28 April 2023.  The cognisable period is 29 October 2022 to 28 April 2023. 

The complainant’s evidence was that for 90% of his time on a particular crew he worked from 7.00am until 5.00 or 5.30pm, and had breaks during the morning and for lunch.  In the last 3 weeks of his employment, he was working on a different crew and finished work between 4.00pm and 5.00pm.  The evidence before me was of a 5-day working week.

This evidence does not support the asserted breach of section 15 of the 1997 Act within the cognisable period.  Accordingly, I find that this complaint is not well founded.  

CA-00056402-008 (Organisation of Working Time Act 1997)

This complaint under section 27 of the Organisation of Working Time Act 1997 (the “1997 Act”) was that the complainant was not notified of his start and finish times in advance, contrary to section 17 of the 1997 Act.

The complainant’s contract specified the complainant’s core hours of work as being 8.00am to 4.00pm Monday to Friday, or as agreed with the Team leader.  The complainant’s account was that the arrangement was for him to meet with the more senior crew member at the warehouse at 7.30am, or at an agreed time on site.  The complainant acknowledged that the detail in the contract of employment regarding his hours of work accurately reflected what happened in practice in employment. 

I am satisfied that the complainant had sufficient clarity and predictability around his start and finish times and that his core hours of work were as provided for in his contract of employment.

I find on the evidence before me that there was no breach of section 17 of the 1997 Act and that this complaint is not well founded.

CA-00056402-009 (Terms of Employment (Information) Act 1994)

The complaint presented to the Commission was that the complainant did not receive a statement in writing of his terms of employment.

It was submitted on behalf of the complainant that the complainant had not been provided with a statement of terms within the timeframe required by section 3(1) of the Terms of Employment (Information) Act 1994 (the “1994 Act”) and that the statement provided did not provide particulars of a role description and of his hours of work, including start and finish times.

Section 3(1) of the 1994 Act requires an employer to provide a statement in writing concerning certain particulars of the complainant’s terms and conditions of employment.  At the time the complainant commenced employment, the statement was required to be given within 2 months of the complainant commencing employment.

On the complainant’s account he received the contract of employment dated 15 November 2022 within 28 days of commencement of employment.   The contract details the complainant’s role and his hours of work. 

For completeness, any complaint of a contravention of section 3 of the 1994 Act with respect to the contract provided to the complainant is outside of the statutory time limits set out in section 41(6) of the Workplace Relations Act 2015.     

I find that the complaint of a contravention of section 3 of the 1994 Act is not well-founded.

CA-00056402-001

For the reasons set out above, I find that the complainant was unfairly dismissed and I direct compensation of €3,600.00, payable by the respondent to the complainant, which I consider just and equitable having regard to all the circumstances.

CA-00056402-002

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-003

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-004

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-005

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-006

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-007

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-008

For the reasons set out above, I find that this complaint is not well founded.

CA-00056402-009

For the reasons set out above, I find that this complaint is not well founded.

Multiple complaints – Working Time – Rest breaks – Statement of terms of employment – Minimum Notice – Statutory rights – Unfair dismissal – Redundancy