Complainant

Respondent

Parties

Ralph  Utto

3Fe Coffee Ltd

Representatives

  Self-represented

 Karen Talbot HR Support

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-00055038-001

08/02/2023

The complainant and a witness for the respondent gave their evidence under oath.

The parties were asked to make written submissions on loss of earnings and mitigation measures by 19 September 2023.

The respondent submitted that the dismissal was not in dispute and that the reason for the employee’s termination was down to redundancy.  The complainant was employed as a food production manager and following a revision of the company structure it was decided that the position was no longer necessary. 

The complainant was offered alternative roles, albeit at a lower salary, but refused to consider the roles.  As the complainant was on only individual at his level and salary, there was no pool of employees to consider, and the redundancy was finalised on 18 November 2023.  The complainant’s level of service did not give rise to a redundancy payment.

The witness for the respondent gave evidence that there was on ongoing process to review the structure of the business and that the business was changing from a flat structure to a hierarchical structure and that as a result a head chef was recruited at a level above the complainant. Two roles of Lead Chef were to be created below that of the complainant and he was offered these roles.  At a meeting on 14 November 2022, the complainant was offered one of these roles but declined to consider them as he was not prepared to work at a salary level below his current level.

The changes in structure were outlined to him and he was sent the finalised job profiles when they were finished on 18 November.  He was given a short timeframe to indicate his interest but reiterated that he was not interested in a position at a lower salary level. There was not cross examination.

The respondent indicated that it did not believe that the complainant either substantiated his loss nor made enough effort to find alternative employment in a market where chefs were in great demand.

It was submitted that there is a positive duty on a complainant that requires him to have made earnest efforts to seek employment.  In the case of Sheehan v Continental Administration Co Ltd UD858/1999, it was stated,

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

The respondent submitted that the evidence adduced of efforts made by the complainant fall short of what might reasonably be expected of him, particularly given the lack of details such as the commencement date of his current employment, his current or prior salary, any responses or outcomes from the applied jobs, information about offers he may have received or declined, as well as any evidence explaining the reasons behind any unsuccessful attempts.

The respondent submitted that in context of the hearing on 05 September 2023 that the complainant made frequent reference of his childcare responsibilities. This appears to indicate that his job search, his availability, and the positions for which he applied and/or accepted, may have been significantly impacted by such responsibilities. While this would clearly be the complainant’s prerogative, it would be unjust for that to impact in any way on the Respondent.

The witness for the respondent noted that there was an ongoing process regarding the review of the structure of the business.  He stated that they were seeking to have one full-service kitchen to service all the outlets.  As part of the restructure, the witness noted that there were removing items from the menu, trying to improve quality and were looking at staffing levels.  He stated that they had a flat staffing structure and were looking to bring in a hierarchical structure.  The new position was at a level above the complainant.  He was asked to consider positions below that which would have a lower salary. The complainant asked for a couple of days to consider matters but declined the roles.  Cross examination of the witness was not availed of.

The complainant submitted that the restructure did not give rise to a redundancy situation as the Head Chef role was simply his role with a new title.  His duties were given to the Head Chef.

The complainant stated that he never received the information regarding the positions in writing until just before his dismissal and that he was only given 1 hour and 20 minutes to consider his position before receiving his purported redundancy notification.

Complainant evidence:

The complainant outlined the shortcomings in the system of food preparation, noting that there were staff shortages and that there was full preparation of food need in each outlet.  He noted that he had responsibility for cleanliness and rostering too. No noted that unfortunately no staff were available, and he spent most of his time based in the production kitchen.  He noted that the changes to the dishes were not liked.  He stated that some of the lead chefs were taken to produce new foods.

The witness noted that as regards the new roles, the job specification was only sent shortly after 4pm with a response time before 5:30.  He noted that as he has kids, he does not keep his phone in his hand.  He stated that he had no prior knowledge of the arrival of a new head chef who came in on a consultancy basis about 3 to 4 times per week in the final weeks.

Under cross examination, he was asked if he was interested in the lead chef roles and respondent that perhaps if things had been different he would.  He stated that he was expecting to receive information which he did not get.  He was not made award of the locations, and that there was 2.5km between them and that was important to know.

He stated that it was unfair to be offered something on half salary, he went off work.  He confirmed that he was being paid to consider the issues.

As for his mitigation of loss, he stated that he applied for 35 roles in 2022 and a further 38 in 2023.  He stated that he got an alternative job at the end of February but was on €15,000 less for a full-time position.  He confirmed that he spent 1.5 hours daily on job search.

Section 1 of the Unfair Dismissals Act defines dismissal in relation to an employee as meening:

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

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

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6(1) of the Act states:

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.

However, Section 6(4) of the Act includes the following:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

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

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,

Having regard to the evidence provided by both the complainant and the respondent, I am satisfied that the respondent had given consideration to the structure of the business and had decided to carry on business in a different fashion.  The evidence given was that the complainant’s role would no longer be required going forward and he was offered alternative employment, albeit at a lower salary.  Having regard to the facts presented by both parties, I find that the complainant’s role was phased out due to redundancy.  Accordingly, Section 6(4)(c) of the Unfair Dismissals Act applies and I find that the complainant was not unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal Act – dismissed on grounds of redundancy – not unfairly dismissed.