Complainant

Respondent

Parties

Anita  Ryan

Killaloe Car Care Products Ltd

Representatives

Work Matters Ireland

 Lynch Fitzgerald Accountants

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-00059940-001

12/11/2023

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

CA-00059940-002

12/11/2023

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

CA-00059940-003

12/11/2023

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

CA-00059940-004

12/11/2023

The Complainant submitted three complaints, that she was unfairly dismissed, did not receive a written statement of her terms of employment within two months and did not receive her statutory entitlement to minimum notice. There was a duplicate complaint submitted regarding the failure to provide a written statement of terms of employment.

The Complainant commenced employment with the Respondent on February 3, 2020.  The Complainant was paid 302.59 per week. 

The Complainant’s employment was unfairly terminated by reason of Redundancy on September 12, 2023. The termination of employment was communicated by letter on that date.  Prior to the meeting in which she was issued the termination letter, the Complainant had received no notice that her position was at risk of Redundancy or that her employment was to be terminated.  The Complainants employment was terminated with immediate effect.

The Complainant was not issued a Contract of Employment until May 15, 2023.

 Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissal Acts, 1977.

Notwithstanding the fact that there was no consultation process and no selection process the Complainant submitted that no redundancy existed, and her dismissal was as result of her recent illness and request to work from home and the Respondents subsequent refusal.

Section 6 of The Unfair Dismissal Act, 1977, states  

“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, 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. “

The Complainant is satisfied a genuine redundancy situation did not actually exist, she was unfairly dismissed, which is contrary to legislation.

The Complainant recognises legislation gives the right to an employer to dismiss an employee due to redundancy. However, that right is predicated on the selection of employees for redundancy based on fairness and adherence to an agreed procedure, a code of practice or relevant legislation, regarding dismissals. 

In the absence of an agreed procedure, employers must ensure fair procedures that routinely apply to any dismissal are afforded to the employee being made redundant. These include the right to notice, the right to be represented at meetings, the right of the employee to respond to the employer’s decision to make the job redundant, and the right to appeal the decision. 

The Complainant was invited to a meeting on September 12, 2023. This invitation provided no advance notice that this meeting with Andrew Mc Caughan, General Manager and a Director was related to redundancy or the termination of her employment. The Complainant was not afforded the right to be accompanied or represented at the meeting.

There was no Consultation Process. The Complainant was dismissed with immediate effect with no opportunity to respond. 

The Complainant was not offered the right to appeal the decision to make her role redundant.  

The Complainant was issued her Contract of Employment, describing her role as Receptionist in the Accounting Department, as recently as May 05, 2023, a mere nine weeks prior to the termination of her employment.

In the termination letter the Respondent states it had reviewed alternative positions but considered it could not redeploy the Complainant to either of these positions.  These positions were identified as, Production & Sales Representative. There is no reason as to why the Complainant would not have successfully performed in these positions. The Respondent offered no rationale as to why it has formed the opinion that the Complainant was an unsuitable candidate for these positions.

Despite the Respondents assertions in relation to expenditure and open positions in the Company it advertised to recruit two positions, one very similar to the role held by the Complainant. This position for a Part Time Receptionist/File Clerk was advertised on June 01st 2023. 

The Respondent failed to consult with the Complainant. The first and only communication in relation to her dismissal was the letter from the Respondent, informing her of the decision to terminate her employment.

The Respondents failure to engage in any form of consultation has denied the Complainant her right to Fair Procedures & Natural Justice. 

  CA: 00059940-002: Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

  Contrary to legislation the Complainant was not provided a statement of her core terms of employment, within the required time limit, following the commencement of her employment. 

The Complainant was issued her Contract of Employment, as recently as May 05, 2023, more than three years after the commencement of her employment. The Complainant is seeking compensation for the Respondents breach of her rights in this regard.

 CA: 00059940-004: Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice of Employment Act, 1973

 The Complainant was not paid her notice entitlement of two weeks. The Respondent has paid only her Statutory Redundancy entitlement, as per the Redundancy Calculation & Final Pay Slip.

The Complainant is seeking payment of 2 weeks’ notice, equal to the sum of €605.18.

Since the termination of her employment the Complainant has sought alternative employment.

The Complainant procured alternative employment which commenced on January 08th 2024. The Complainant is paid €17.50ph.  This is a temporary contract due to end on June 26th, 2024. The Complainant asked that the Adjudication Officer considers this in relation to future loss of earnings; the Complainant might experience, while seeking employment following the cessation of this contract. The Complainant lives in a rural area where employment opportunities are not abundant.

During her time of unemployment, the Complainant lost her entitlement to payment of

Working Family Credit, a weekly sum of €175.00, resulting in a total loss of €2,975.00. The Complainant asked the Adjudication Officer to consider this figure when calculating the financial loss incurred as a result of her dismissal.

The Complainant was employed by Killaloe Car Care Products Ltd. as Receptionist/Office Clerk initially on a two-day week grew to three days a week at €100 per day.

On 21/2/2023 the Complainant asked the Director for an advance on her wages of €1000 as she was planning on going on Holidays. The company gave a cheque of €500 advance on her wages and as the company was not in a financial position to advance anymore. The Director once again gave the Complainant a personal loan of €500 to help her out. It was agreed that this loan from the Director was to be repaid at €50 per week. The €500 advanced by the company had not been repaid and it was eventually deducted from the Complainants  final Settlement.

Early April 2023 the Complainant stated that as of 17/4/23 she would be available to work an additional day, being a Monday, however she asked that the additional €100 would not go through the books as she would lose her Family Income Supplement. The Director stated that the company was not in a position to do so and suggested a possible reimbursement of expenses but suggested a meeting with the company's accountant to discuss the ramifications of such a payment. At that time the Complainant also asked the Director if her daughter could come to work for the Summer holidays and the Director said that would be great.

On 13/4/23 the Company External Accountant and a Director met with the Complainant. Meeting concluded that any additional wages had to go through Payroll. However, it was suggested that if suitable to the Complainant the company could offer the possibility of a five-day week to offset any loss the Complainant would incur in losing her benefit. This offer was declined by the Complainant who stated that she would be earning less than she had in her present position and she would continue with her three days plus benefits. Therefore, the company continued her three-day week position.

It was agreed that the Complainant would come in on Monday 15/5/2023 to address with the Director outstanding Customer Queries. However, at 11.16am the Complainant messaged the Director to say that she was unwell and was going to see the doctor later. At 15.58 the Complainant messaged to say she had a viral illness and she had received a sick cert for two days and would return to work on Wednesday 17/5/23. However, at 7am on 17th the Director received a message from the Complainant stating that she was still unfit for work and would not be in. Again, on 18th May at 8am another text message was received from the Complainant saying that she would not be in and would ring later. At 7pm the Director received a phone call stating that the doctor was sending her for tests, the Director wished her well and asked if there was anything that we could do to help not to hesitate to ask and to keep her updated.

Mr. Andy McCaughan was appointed General Manager in early April 2023. The purpose was twofold, firstly was to bring structures into this family run business and secondly to increase the possibility of Sales in Northern Ireland given his contacts there. Mr. McCaughan was to be assisted in this role by a Director therefore less of the Directors time would be available for her duties in Killaloe. As part of Mr. McCaughans role Contracts, Terms and Conditions etc. were to be put in place and issued to all employees. As the Complainant was out sick, her Contract was emailed to her on 3/8/23 given her absence from the Office, and it was never returned. The Complainant was informed by email from Mr. McCaughan that the Employee Handbook was available in the office.

As part of the implementation of the Northern Ireland Plans a position was advertised for the office for two days to supplement the Complainants position of three days, in the light of the Complainants refusal to work the five days. This was to allow the Director to concentrate on the Northern Ireland Project. The purpose of looking at the Northern Ireland market was to try increase sales and ultimately cashflow. Due to Covid the company had suffered a drop in turnover and had to rely on government supports to sustain its viability. In addition, the company's directors had to introduce additional funds to prop up the company and thus keep employment at existing levels.

In the Complainants absence the Northern Ireland project was put on hold as the Director had to undertake the Complainants duties in the Office. In the light of such delays that Project did not proceed and as a result on August 4th, 2023, a meeting with company directors, General Manager and Accountant took place to consider the financial position of the company. The restructure agreed was:

As the Yard Manager had decided to retire and another employee left a decision was taken not to replace them.

In the Complainants absence the Director being a director and not on a salary could perform the role/duties preciously undertaken by the Complainant thus giving an additional financial saving therefore it was decided that this position was to be made redundant.

The company to take on additional long-term borrowings to assist in its recovery.

On 9/8/23 The Complainant informed the Respondent that she would be fit to return to work on 22/8/23 as soon as her two sick notes expired, and three days annual leave already agreed were to be taken on 5th/6th/7th September.

On the 17/8/23 the Complainant was notified that an appointment was arranged for 21/8/23 to attend an independent doctor to certify her fitness to return to work. As Mr. McCaughan was on Annual Leave from 21/8/23 to 30/8/23 he was unavailable to hold a return-to work meeting, therefore the company paid the Complainants wages while she was waiting. On 30/8/23 Mr. McCaughan tried to arrange this meeting for 31/8/23. The Complainant declined stating she had a medical appointment and unable to attend and would not be available until after her holiday. Mr. Mc Caughan arranged with the Complainant a return-to-work meeting on the 8/9/23 where she was informed of the companies restructure and that the position was being made redundant. The Complainant was given a Letter explaining the reason for Redundancy, cheque for holiday and minimum notice payment less advance on wages from company, and calculation of the Redundancy Payment due to her and Redundancy payment was transferred to her Bank account later that morning.

Terms of Employment Complaint

The Respondent accepted that they did not provide the Complainant with a written statement of terms and conditions of employment within 2 months of commencing employment as required by the Terms of Employment (Information) Act 1994.  The Act states the following

I award the Complainant compensation of four weeks pay a total of 1200 Euros. (CA-00059940-002)

CA-00059940-003 was withdrawn at the Hearing as it was a duplicate complaint.

Minimum Notice Complaint

The Complainant was entitled under the Minimum Notice and Terms of Employment Act 1973 to two weeks notice pay. The Respondent paid the Complainant this notice in her final paysilp/gross pay (and this was agreed by the Complainant) but deducted in her final pay an amount of 500 Euros as they stated an advance was paid to the Complainant for personal reasons and this remained due for repayment. The Complainant did not comment on the advance but her Representative disputed that this was a legitimate deduction. The Respondent stated the 500 Euros was given to the Complainant by a Director a few weeks before as an advance for holidays. The Adjudicator has no jurisdiction under the Minimum Notice and Terms of Employment Act 1973 to determine if the deduction made was a lawful deduction or not as this is an issue to be properly dealt with under the Payment of Wages Act 1991. Based on the payroll evidence presented I decide that the Respondent paid the Complainant what was due to the Complainant under the Minimum Notice and Minimum Notice Act and the complaint is not well founded. (CA-00059940-004)

Unfair Dismissal Complaint

The Parties Representatives made submissions to the Hearing regarding the complaint for Unfair Dismissal.  The Respondent Representative stated that the Respondent was left in a precarious position due to Covid 19 and was relying on Government supports at the time. He informed the Hearing that the MD had taken a step back from the business and a GM was appointed in 2023 with the direction to put in place proper structures and to look at entering the Northern Ireland market. He advised the GM required the Complainant to work five days at the time and a salesperson for the NI market was to be hired. He advised the NI market never took off and the business had to restructure as a result in August 2023. He advised the Warehouse Manager was not replaced and when the Complainant was out sick the Respondent was able to manage without her services as a Director was able to do her functions without compensation. It was decided to make the Complainants position redundant and to ensure a better financial stability. He advised there was a high debt to the Bank and the Owners had to sell property to maintain the viability of the business, tried to secure private equity to assist the business and had a very high interest rate to pay. He advised thy met the Complainant went she returned form sickness and informed her a Director was taking over her duties and her position was being made redundant.

The Complainant Representative queried if the Warehouse Manager had been part of the restructuring as he had retired and that the Complainant was the only one of 13 staff made redundant. He questioned the NI market expansion had to be abandoned due to the Complainants illness and was informed the Director had taken over the Complainants duties at no extra cost. The Complainant Representative also challenged that fair procedures had been applied and that no consultation had taken place. He also stated that the Complainant was informed to attend a return to work meeting and was not advised her job was in jeopardy nor was she given the right of appeal. He also stated there were no reasons why the Complainant could not do the job of NI Sales Representative which was available at the time

The Law.

“6.1. 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 a 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 a 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 under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complains in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the Complaint under the Terms of Employment (Information) Act 1994 well founded and award the Complainant compensation of four weeks pay a total of 1200 Euros. (CA-00059940-002)

CA-00059940-003 was withdrawn at the Hearing as it was a duplicate complaint.

Based on the evidence I decide that the Respondent paid the Complainant the notice pay that was due to the Complainant under the Minimum Notice and Terms of Employment Act 1973 and the complaint is not well founded. (CA-00059940-004)

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find the Complainant was not unfairly dismissed. (CA-00059940-001)

Unfair Dismissal