Complainant

Respondent

Parties

Gerard  Keyes

Pro-Light Design & Technology Ltd

Representatives

Peter Leonard BL

Terry Byrne of Pro-Light Design & Technology Ltd

Act

Complaint/Dispute 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-00054717-001

25/01/2023

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

CA-00054717-002

25/01/2023

The Complainant was the marketing manager for the Respondent lighting supply and design firm.

He joined the Respondent on the 1st of February 2017 and was made redundant on the 16th of December 2023.  He subsequently filed complaints under the Unfair Dismissals Act and the Terms of Employment (information) Act.

The Complainant’s counsel made detailed written and oral submissions on his behalf and the Complainant gave evidence under oath.

The Complainant believes he was targeted by the Respondent for seeking a pay increase in the Summer of 2022. There were at that time significant plans to expand the business and he was extremely busy in a role which was valuable to the building the profile of the business. After he sought a pay increase he was put at risk of redundancy. No other role was made redundant at that time. The Complainant’s role was advertised during the course of the redundancy consultation as a junior sales role but then taken down. This was separate to the in-person sales role the Respondent had notified him about.

The Respondent was represented by its managing director Terry Byrne who gave evidence under oath.

The Respondent is a small company which was facing extremely difficult challenges. They determined that they needed a new “on the road“ salesperson and that the marketing manager role was not necessary. They engaged fully with the Complainant in a consultation process and gave him the opportunity to apply for that role. He chose not to and was made redundant.

CA-00054717-002 / Unfair Dismissal Act

The Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:-

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.

As such the burden is on the Respondent to establish that this dismissal was permitted under the act. The Respondent submits that in this case dismissal was allowed as per Section 6(4)(c) which states that:

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 ... the redundancy of the employee...

It is important to note that Section 6(7) provides that:-

Without prejudice to the generality of subsection(1)of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so-

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal...

A reasonable Respondent is required to carry out a thorough exercise to avoid redundancy. This obligation was recognised by the Labour Court in Students Union Commercial Services Ltd and Alan Traynor.

Conclusions

The Respondent’s evidence was that following the energy and inflation crises in 2022 they began reviewing their structure, the requirements of business and existing overhead. Their business was seeing a change in demand as customers were redirecting funds they would normally reserve for investment to maintaining normal operations. Their plans for expansion after the pandemic were put on hold.

They determined that they wanted one other person in sales. As an SME they determined that they didn’t need a marketing person. Marketing had been very active under the Complainant but it was not clear what it had generated in terms of new business and they thought having a sales person on the road would be more beneficial.

They engaged in a consultation process with the Complainant and notified him of two other roles. The sales role and a more technical role. The Complainant declined to apply for either of them but engaged extensively in the process arguing his role should be retained.  He submitted a document arguing for his retention in the same role he was in and when that was rejected he appealed the decision to make him redundant.

During the course of the consultation process there was some staff movement within the Respondent. During the course of this an additional vacancy arose which appears to have had significant overlap with the Complainant’s role but was graded at a more junior level. This was advertised on linkedin and then taken down while the Complainant was still challenging his redundancy. He was not notified of this job and was not given an opportunity to apply for it.

The Respondent disputes that this role could have been a suitable alternative and argues it was not related to the Complainant’s role. However, on review of the linkedin advert and the Complainant’s evidence and the Respondent’s general position that the Complainant’s role was simply subsumed into the Managing Director’s responsibilities I do not accept their position.

I conclude that on the balance of probabilities the Complainant’s role was downgraded and some functions given to this more junior role and others given to the Managing Director or abandoned. The Respondent was of course entitled to conduct this sort of reorganisation. However, the Complainant should have been given an opportunity to apply for that role, even if it meant a reduction in salary and seniority.

I do not find that this was a targeted dismissal cloaked as a redundancy as Mr Byrne did provide detailed and convincing evidence of his decision and why it made sense for the business. However, as outlined in the above summary of the law, there was an obligation for the Respondent to demonstrate that they acted reasonably and that they carried out a thorough exercise to avoid redundancy. They cannot succeed in this when they did not notify the Complainant that they were recruiting a downgraded version of his own post.

Award -Redundancy/ Superannuation

Section 7(c) of the Unfair Dismissals Act outlines that as an alternative to reinstatement or reengagement I can award compensation to the Complainant, if the employee incurred any financial loss attributable to the dismissal.

The Complainant received a redundancy lump sum when he was terminated.

The legislation provides an extremely clear definition of what is financial loss. “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

From the above it is clear that income and accrued statutory redundancy rights/ superannuation are different elements of financial loss and that the act envisages redress for both elements of financial loss. That is actual/prospective loss of income and the value of any loss or diminution of statutory redundancy rights or superannuation rights.

The Complainant receives no employer pension contribution in his new role and had a pension contribution of 5% with the Respondent.  However, the Respondent has already paid the Complainant his full statutory redundancy entitlement.  As such I do not think a payment needs to be made the Complainant in this case relating to this element of loss.

Award -Income

I must consider what payment there is owing to the Complainant for any actual loss and any estimated prospective loss of income attributable to the dismissal.

The Complainant’s was out of work for approximately three months. He was paid €4333.33 a month. 

The Complainant has a duty to mitigate her losses and demonstrate the same he has provided evidence of his applications for a series of jobs in that three-month period. I am satisfied that he fulfilled that obligation and that the appropriate award is €13,000

CA-00054717-001 / Terms of Employment (information) act

The Law

Section 3 of the Terms of Employment Information Act 1994 states that:

(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 ofthe Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) F9[are treated,]]

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Section 7(2) of the act provides that:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G  shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under F36[section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, ], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G  and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

Conclusion

The Complainant was not given a contract of employment. This is not required by the above legislation which only requires a signed statement of particulars.

 He was given a signed letter of offer which covered most of the key terms of his employment and there was no actual ambiguity as to any key term of employment which might have affected him adversely.

In the circumstances, while I think the complaint is well founded, limited redress of approximately two week’s salary is appropriate.

CA-00054717-001

I find the complaint well founded and direct the Respondent to pay the Complainant €2165

CA-00054717-002

I find the complaint well founded and direct the Respondent to pay the Complainant €13,000