Complainant

Respondent

Parties

Josep Maria  Carreras San Andres

BM Mara Car Sales Ltd (Kearys Carstore Dublin)

Representatives

  Self - represented

Deirdre Malone - EY Law Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00058256-001

12/08/2023

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

CA-00058256-002

12/08/2023

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

CA-00058256-003

12/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058256-005

12/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058256-006

12/08/2023

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

CA-00058256-007

12/08/2023

At the commencement of the hearing, the complainant stated that he was pursuing an unfair dismissal as opposed to a discriminatory dismissal under the EEA and in this regard withdrew complaint CA- 00058256-005.

The complainant commenced employment with the respondent on 23 September 2019. The complainant was engaged as a Service Technician.

The complainant states that he is not proficient in written or spoken English and that his contract was only provided to him in English. He states that he requested from his manager a copy of his contract in Spanish but it was not forthcoming. The complainant states that he received two contracts with two different commencement dates of employment. He states that his contract made no reference to section 23 of the National Minimum Wage Act.

The complainant states that in April 2022 he informed his employer that he would be leaving the company in September 2022. He states that in June 2022, he was asked to sign a letter which he did not understand the contents of same. The complainant states that his manager informed him the business was closing. The complainant states that when he received a copy of this letter it was different to the original letter that he signed. The complainant states that he came to realise afterwards that he was duped into signing a letter wherein he accepted to leave his employment. The complainant states that his manager had told him that the company had made a decision to outsource the work of the Warehouse Department and that he would be paid in lieu of notice.

The complainant states that he was never informed or put on notice that his position was at risk of redundancy. He states that the respondent failed to communicate to him the reasons for his dismissal and failed to follow any fair procedure.

The complainant states that as the business was closing down, he was entitled to be paid his redundancy entitlements.

The complainant states that he was discriminated against by the respondent in his conditions of employment , in that, he was treated less favourably on grounds of race (Spanish national) vis a vis his colleagues who are Irish.  

The respondent, by way of preliminary point, submits that it relies on S101 (4A) of the Employment Equality Act (EEA) as amended wherein it provides as follows: 

(a)   Where an employee refers-

(i)a case or claim under section 77, and a claim for redress under the Act of 1977,  to the Director General of the Workplace Relations Commission in respect of a dismissal, then from the relevant date, the case or claim referred to in subparagraph (i) shall, insofar as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claims under the Act of 1977. 

(b)   In this subsection – 

“Act of 1977” means the Unfair Dismissals Act 1977;

“dismissal” has the same meaning as it has in the Act of 1977;

“relevant date” means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister [for Jobs, Enterprise and Innovation].

The respondent states that the relevant date for the purpose of subsection 4A is 42 days from the date of notification to the employee concerned that he/she has to elect between the two complaints. 

The respondent states that it has no visibility of any correspondence to the complainant to so elect, due to the late receipt of the complaint. However, on the assumption that no election has been made by the complainant within 42 days from the date of notification to the employee of their requirement to elect, it is respectfully submitted that the EEA claim falls away. Accordingly, it is submitted that the WRC has no jurisdiction to hear the discriminatory dismissal claim of the complainant i.e CA -0058256-005. 

The respondent states that in addition to the above, the complainant has failed to identify the comparators referred to within his complaint form and submissions as “Irish counterparts”, whom it is alleged were afforded more favourable treatment by being retained in employment and who are Irish.  The respondent states that the complainant was the only employee of the respondent in the role of service technician. 

The respondent states that it operates a motor vehicle car store trading as Kearys Carstore, Dublin. It has a team of about 27 people. The structure within which the service technician role sits includes a Head of Business, three managers (Valeting, Service and Sales) and usually about three other employees (a Workshop Controller, Service Manager and Service Administrator). When the complainant was employed with the respondent, he reported to the Service Manager. 

The complainant commenced employment with the respondent on 23 September 2019. The complainant was engaged as a Service Technician. The complainant’s gross monthly salary was €2,666.00 (net pay €2,148.00). The complainant worked 40 hours per week. The respondent states that the complainant’s start date of 23 September 2019 is not disputed.  

The respondent states that the responsibilities of a Service Technician include, but are not limited to, the repair and maintenance of motor vehicles. It is imperative for a Service Technician to accurately document all repairs conducted on customers' vehicles and execute repairs in strict accordance with manufacturer guidelines and specifications. It states that working both efficiently and diligently, they collaborate within a team environment while ensuring the upkeep of their individual workspace. At the date of termination of the complainant’s employment, he was the only person working in the role of Service Technician. 

The respondent states that it also engages the services of a third-party contractor who provides its employees to the respondent to complete these duties. The employees of the third-party contractor who regularly provide their services in the respondent are all from Mauritius.  There is no employment relationship between the third-party contractor employees and the respondent. The respondent states that the complainant resigned his position with the company by letter dated 11 April 2023 indicating his intention to cease employment with effect from 23 September 2023.

The respondent states that it accepted the complainant’s resignation. However, on 20 June 2023 the respondent elected to bring forward the complainant’s end date from 23 September 2023 to 20 June 2023 and pay the complainant in lieu of notice (one month’s pay). The complainant ceased employment with the respondent on 20 June 2023.  The respondent submits that the complainant commenced employment on 3 July 2023 with his new employer. The respondent states that it respectfully submits that the complainant has no loss.  

Complaint CA/00058256/001 & 002 – Terms of Employment Information Act 

The complainant states in his submission that his contract of employment was not provided in Spanish. He states that he has two contracts of employment with differing start dates (September and November 2019). The respondent states that it accepts that the complainant’s employment commenced on 23 September 2019. 

Within the same complaint, the complainant alleges that the contracts do not make any reference to Section 23 of the National Minimum Wage Act. 

The respondent maintains that the complainant has received a written statement of his terms and conditions of employment in accordance with Section 3 of the Terms of Employment Information Act. It states that the complainant never requested a copy of his contract of employment in Spanish and engaged fully in English in the workplace up to and including preparing and submitting his letter of resignation dated 11 April 2023.  The respondent states that the complainant’s contract of employment confirms the following:

a)     Remuneration of €32,000.00 gross per annum.  

b)     Payment made monthly to his bank account.  

c)     He would receive an €1,800.00 relocation payment.  

d)     He would receive a tool allowance to be repaid at a rate of €25.00 per week.

e)     Company vehicle use was included and BIK would be deducted in accordance with Revenue rules.  

It is submitted that there was no change to the terms and conditions of the complainant’s contract of employment during the complainant’s tenure with the respondent. Notwithstanding that the contract does not reference the National Minimum Wage Act, no request was ever made by the complainant for his statement pursuant to Section 23 of the National Minimum Wage Act. 

Complaint CA/00058256/003 - Unfair Dismissal

The respondent submits that the complainant seeks compensation in relation to the termination of his employment on 20 June 2023. The respondent does not dispute the dismissal and notes that the complainant commenced new employment on 3 July 2023. The respondent states that it is accepted that the complainant voluntarily resigned his position in April 2023 providing 5 months’ notice of his intention to leave the respondent. The respondent states that the complainant’s letter of resignation was prepared by him and submitted to his manager on 11 April 2023. The respondent submits that during the extended period of notice (20 June 2023), it elected to terminate the complainant’s employment early. The contract of employment permits termination of employment on 2 weeks’ notice. The respondent states that this was completed by the end of April 2023. The respondent served notice on the complainant on 20 June 2023 and provided 4 weeks’ notice, paying the complainant in lieu of notice.  The respondent contends that the complainant has no loss. It states that the complainant accepts that he commenced employment on 3 July 2023 with a new employer.

The respondent disputes and denies that the complainant’s manager told him that the business was closing (it remains open and trading today). It is similarly disputed and denied that the complainant’s manager notified him that the reason for bringing forward his termination date was to the intention to outsource the warehouse department. The respondent states that should the complainant wish to make the case that his role was redundant, having provided notice to terminate his employment to the respondent, it is submitted that he must elect the complaint that he wishes to proceed with before the WRC. The complainant cannot allege that he was unfairly dismissed in breach of the procedures set out in the Code of Practice and also allege that he was made redundant in breach of the best practice associated with termination by reason of redundancy. 

Complaint CA – 00058256 -006 – Employment Equality Act 

The complainant alleges that he was discriminated against by the respondent on the grounds of race. It is alleged that the respondent treated the complainant unlawfully by discriminating against him in his conditions of employment.  The respondent submits that the complainant has failed to establish any facts from which it may be presumed that there has been discrimination in relation to him as required pursuant to section 85A of the employment equality legislation. Accordingly, the complainant has failed to transfer the burden of proof to the respondent by failing to identify any comparator who was treated more favourably on the basis of being Irish. The respondent submits that the complainant has also failed to provide any evidence that he was treated differently to any other employee in relation to terms and conditions of employment. 

The respondent states that without prejudice to the above, the company uses a template contract of employment for its employees. The contract provided to the complainant is identical to the contract provided to other employees of all nationalities in the respondent, save in respect of job title, salary, working hours and holidays etc. The respondent states that fundamentally the core terms and conditions of employment are identical for all employees, irrespective of race.  

The respondent submits that it complies in full with its obligations pursuant to Section 8 (6) of the EEA: “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee …in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee…

(a) The same terms of employment (other than remuneration and pension rights),

(b) The same working conditions, and 

(c) The same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary matters.” 

The respondent states that the complainant asserts in his submission that the respondent failed to provide his terms and conditions of employment in Spanish.  The respondent maintains that the  complainant never requested his terms and conditions of employment in Spanish over the four-year period in which he was employed by the respondent and communicated in English for the duration of his employment.  It states that the complainant never queried any of the specific terms and conditions of employment set out in his contract of employment.  The respondent submits that the complainant has failed to provide any comparator who received more favourable terms and conditions of employment.  The respondent states that the complainant has failed to provide any prima facie evidence that he was treated differently to an Irish colleague pursuant to section 6(2)(h) of the EEA.

Complaint CA 00058256-007 – Redundancy Payments Act

The complainant submits that he did not receive a redundancy payment in accordance with the Redundancy Payments Act.  The respondent states that the role of service technician was not made redundant. The respondent states that the complainant resigned his position voluntarily on 11 April 2023 and provided 5 months’ notice to the respondent. The respondent accepted the notice given and elected to terminate the complainant’s employment on 20 June 2023. The respondent states that despite the complainant having worked in excess of his contractual and statutory notice (2 weeks), the company paid the complainant an additional four weeks’ pay on termination of employment. 

The respondent asserts that without prejudice to the above, the complainant cannot proceed with two (three on filing of his complaint form) different claims for compensation regarding the termination of his employment. The respondent submits that the complainant cannot be unfairly dismissed on the grounds of conduct and redundant simultaneously. 

The respondent submits that it has no complaint to answer under the Terms of Employment Information Act, the Unfair Dismissals Act and the Redundancy Payments Act. It states that the complainant resigned his position voluntarily in April 2023 providing 5 months’ notice. The respondent elected to shorten the period of notice and terminate the complainant’s employment on 20 June 2023. The respondent states that the complainant received the benefit of remuneration to 18 July 2023 and the complainant commenced employment with his new employer on 3 July 2023 and therefore has suffered no loss. 

A supplemental submission was sent in following the hearing by the respondent’s legal representative dated 12 February 2024 which included the following excerpt; “the claimant ceased employment on 20 June 2023. Salary was processed as normal for the full month of June. This included 8 working days of the claimant’s notice. Having reviewed the July payslip, it appears that the claimant was paid for 18.4 holiday hours only for the period from 1 July to 23 July 2023. In error, he did not receive 12 days of pay that comprised the balance of notice provided to the claimant. The company has contacted the claimant to notify him of the shortfall of 12 days pay. Once the claimant confirms that his bank details remain the same, the company will pay this shortfall to the claimant and provide an updated payslip. The company contacted the claimant on Thursday last, 8 February to seek confirmation of bank details but have not yet received a reply from the claimant.”   

Complaint CA/00058256/001 & 002 – Terms of Employment Information Act 

I note that the complainant received a written statement of his terms and conditions of employment in accordance with Section 3 of the Terms of Employment Information Act.   While the complainant alleges that he requested a copy of his contract in Spanish from his manager, there was no evidence to substantiate this assertion. The complainant also states that his contract made no reference to section 23 of the National Minimum Wage Act.

Having carefully examined a copy of the complainant’s terms and conditions, I find that the complainant has not established that the respondent has contravened the Act. In those circumstances I find that this complaint is not well founded. 

Complaint CA/00058256/003 - Unfair Dismissal

The complainant has brought a claim of unfair dismissal and a claim under the Redundancy Payments Acts.   Based on all of the evidence heard, I am satisfied that the complainant was dismissed by reason of redundancy. Therefore I find that the claim under the Unfair Dismissals Act is not well founded.

Complaint CA – 00058256-005 – Employment Equality Act – Discriminatory dismissal

This complaint was withdrawn at the commencement of the hearing.

Complaint CA – 00058256 -006 – Employment Equality Act – Conditions of Employment  

Having carefully examined this complaint, I find that the complainant does not meet the burden of proof required by section 85A(1) of the Act. The complainant did not provide any evidence to establish that he was treated less favourably in his conditions of employment on grounds of his race vis a vis his colleagues who are Irish.  I note that the complainant did not raise a grievance pursuant to the grievance policy set out in the handbook nor did he raise a complaint with HR on the matter. In all of the circumstances I can find no evidence to establish that the complainant was discriminated against on grounds of his race in his conditions of employment.

Complaint CA 00058256-007 – Redundancy Payments Act

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that 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, or

(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,]

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967 above). The Acts provide for a payment of two weeks gross pay for each year of service.     A further bonus week is added to this.

An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist.   The calculation of gross weekly pay is subject to a ceiling of €600. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions.

I note based on the evidence of the complainant that he stated his manager told him the “business was closing” and the company had made a decision to “outsource the Warehouse Department” and this was the reason given to terminate his employment. The complainant states that in June 2022, he was asked to sign a letter which he did not understand the contents of. The complainant states that when he received a copy of this letter, it was different to the original letter that he signed. The complainant states that he was duped into signing a letter wherein he accepted to leave his employment.  

Having carefully examined all the evidence heard on this claim, I find that the complainant’s job was redundant, he was the only mechanic remaining doing this work and that aspect of the company business was closing down and a decision made to outsource the Warehouse Department. While the complainant advised the company in April that he would be leaving the company the following September; I note that the respondent terminated his employment in June 2023 by reason of the role being made redundant.  I am satisfied from the evidence adduced that the complainant was dismissed by way of redundancy and is entitled to a redundancy payment lump sum based on the following:

Start date:                             23 September 2019

Termination date:                  20 June 2023

Weekly gross pay:                €660.50 p.w.

Complaint CA/00058256/001 & 002 – Terms of Employment Information Act

I declare that this complaint is not well founded.

Complaint CA/00058256/003 - Unfair Dismissal

I declare that this complaint is not well founded. I find that the complainant was not unfairly dismissed.

Complaint CA – 00058256-005 – Employment Equality Act  - Discriminatory Dismissal

This complaint was withdrawn at the commencement of the hearing.

Complaint CA – 00058256 -006 – Employment Equality Act 

I find that the complainant was not discriminated against on grounds of his race in his conditions of employment pursuant to the Employment Equality Acts and this complainant therefore fails.

Complaint CA 00058256-007 – Redundancy Payments Act

I am satisfied from the evidence adduced that the complainant was dismissed by way of redundancy and is entitled to a redundancy payment lump sum based on the following:

Start date:                             23 September 2019

Termination date:                  20 June 2023

Weekly gross pay:                €660.50 p.w.

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. 

Employment Equality Acts, Unfair Dismissals Act, Redundancy Payments Act, Terms of Employment Information Act, discrimination, no prima facie case