Complainant

Respondent

Parties

Mark  McCole

Padraig Thornton Waste Disposal Limited

Representatives

Shane  MacSweeney & Company Solicitors

 HR Manager

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-00069953-001

12/03/2025

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

CA-00069953-002

12/03/2025

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

CA-00069953-003

12/03/2025

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

CA-00069953-004

12/03/2025

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

CA-00069953-005

12/03/2025

The Complainant was employed as a Customer Centre Manager and claimed he had been unfairly dismissed due to a purported redundancy, he alleged he was replaced through a new Supervisory structure within weeks of being made redundant and the Respondent never discussed this structure and roles with him as an alternative to redundancy. He alleged he was unfairly dismissed also for raising an issue regarding his length of service and holiday entitlement. The Complainant stated he had 15 years service starting in 2010, where the Respondent, who acquired the Company, stated he had started work in February 2018.. He also submitted claims for holiday pay, additional notice pay based on his service, additional redundancy pay based on his greater service, but only if his dismissal was found to be fair, and that he did not get a contract of employment.

The Complainant has lodged 5 complaints with the Workplace Relations Commission arising from the termination of his employment on 28th August 2024. 

His primary claim is made under the Unfair Dismissals Act, 1977 and it arises from the termination of his employment on purported grounds of redundancy on 28th August 2024.  The bona fides of the redundancy is in issue. 

There are subsidiary complaints under the Payment of Wages Act, 1991, the Minimum Notice & Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1994. 

The Complainant is pursuing a parallel/ alternative claim pursuant to the Redundancy Payments Act, 1967, which will only fall for consideration if he is unsuccessful in his unfair dismissal claim.

 The Complainant is 39 years old, is single and does not have any dependents.  

 The Complainant was originally employed by the City Bin Co. Limited which was acquired by the Respondent in August 2023.  His employment transferred to the Respondent by reason of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”). 

 The Complainant worked continuously for City Bin Co. from 1st September 2010 (prior to the acquisition of its assets/ undertaking by the Respondent in August 2023), until his dismissal on 28th August 2024.  

At the time of, and for some prior to, his dismissal, some 11 months later, he was employed as Customer Centre Manager, working 32 hours per week and paid at a rate of €45,000 per annum.  In addition to the foregoing, he was entitled to a bonus (which was awarded at year end), which amounted to €10,000 in 2023. He was based in the City Bin Co’s administrative headquarters at Oranmore Business Park, Oranmore, Co. Galway, from which the Respondent’s Galway operations continue to operate.

The Respondent is a limited liability company established in 1979, which operates a nationwide waste disposal and recycling business, providing both domestic and commercial services.  In addition to standard recycling, it has composting, shredding and skip businesses. It is headquartered in Park West Business Park, Dublin 12 and operates from various sites/ locations around the country. It is a substantial business, with a reported annual turnover of in excess of €100 million.

At the outset the Complainant Representative wished to address the alleged issue of delay on the part of the Complainant, in lodging the within complaints. There is no dispute that the date of the Complainant’s dismissal was 28th  August 2024.  As such, the final date for lodging a complaint within the applicable / standard statutory 6 month time limit was 27th February 2025.  The Complainant attended at the offices of MacSweeney & Company (his representatives) on 25th February 2025 for the purpose of jointly completing the online Complaint Form, which is the prescribed method for lodging a Complaint with the WRC. Same was submitted online at 16:21 on 25th February 2025.  Shane MacSweeney,endorsed a hand-written note of that effect, on the Complaint Form that he printed immediately after it had been “submitted”. Mr. MacSweeney duly printed the completed WRC Complaint Form and it noted on it that it was “submitted”. 

Unfortunately, despite the inclusion of a valid email address on the form, no acknowledgement of receipt of the form was received, despite the fact that it was patently submitted on time.  Unfortunately, MacSweeney & Company have encountered similar difficulties with the WRC in the past.   MacSweeney & Company were prompted to write to the WRC on 10th March 2025.  It was noted that the WRC had failed to issue the appropriate acknowledgement.  

Ms. C, a clerical officer, on behalf of the WRC responded on 12th March 2025 indicating that she could not identify the complaint and advising that it had not been processed by the “Commission”.  

MacSweeney & Company responded to Ms. C’s  email by return on the same date (within 27 minutes) and signalled that the Complainant wished to continue with the application, noting that the attached Complaint Form (in pdf format) was marked as “submitted” in the square box on page 12 of the printed form.  MacSweeney & Company noted that the complaint had been submitted at 16:21 on 25th February 2025.   

For reasons that have never been clarified, the WRC does not appear to have processed the said complaint – despite its system auto-responding to the effect that it was indeed “submitted”.   No explanation or clarification has been tendered as to whether or not this arose due to oversight, internal error and / or deficiencies in the WRC’s IT infrastructure (inter alia).   

The WRC issued a letter on 19th March 2025, confirming (belatedly) receipt of the complaints on 12th March 2025. 

Applying the provisions of Section 41 (6) of the Workplace Relations Commission Act  2015 (“the 2015 Act”), a claim in this respect of notice had to be submitted on orbefore 27th February 2025.  The Complaint was in fact submitted, but the WRC, for reasons that remain unclear, did not receive it on that date.   

Section 41 (8) of the 2015 mitigates against the harshness of Section 41 (6) insofar as it provides: 

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. should apply.”

 In circumstances where the Complainant did in fact submit (or understood himself to have submitted) the Complaint Form prior to the six month limitation period expired and where it seems a technical glitch within the WRC failed to receive or process same appropriately, it is submitted that he has a genuine and substantive “reasonable cause” for the ostensible delay in submitting same.  

In Cementation Skanska v Carroll DWT38/2013, the Labour Court said that, in considering whether “reasonable cause” exists, it was for the Complainant to show that there were “reasons which both explain the delay and afford an excuse for the delay”.  The Court concluded:

“The explanation must be reasonable, that is to say that it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression ‘reasonable cause’ appears in statute it suggests that an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he [or she] would have initiated the claim in time.”

 Further, the Court noted that the length of the delay should be taken into account noting that a short delay might only require ‘a slight explanation’ whereas a long delay might require ‘more cogent reasons’. The delay in the present case is 13 days. It is submitted that Complainant has provided a credible and convincing reason as to why there was an apparent – and short – delay in presenting the present complaints within the statutory timeframe. It is submitted that this is precisely the type of case that Section 41 (8) of the 2015 Act was designed to cover and the WRC’s discretion to extend time ought to be exercised in his favour.

 Complainant’s service

 The Complainant worked continuously for City Bin Co. from 1st September 2010, until his dismissal in 2024.  The Complainant was originally employed by the City Bin Co. in 2007, but left (voluntarily) in 2009, to undertake further education.  However, he was re-employed from 1st September 2010.   Between 2013 and 2015, he again undertook further education, during which time he continued to work for the Respondent on a permanent, albeit part-time basis.  

In 2015, he had planned to undertake substitute-teaching work and by agreement with the Respondent, his terms were varied to allow him to work, as and when he was not getting substitute teaching work (which he only got infrequently) – which, as it transpires, involved him continuing to work regularly (several days weekly) for City Bin Co.  By way of example, in December 2015, he worked a total of 125 hrs, despite the fact that the business would have been closed for a number of days during the Christmas period.  At that time, he was asked by City Bin Co. to submit invoices for the hours worked and to account for his own taxation.  He was treated as a contractor for taxation purposes, but in fact remained an employee, in legal terms and his status as a contractor was what might be termed ‘bogus self-employment’.   

In this respect, we refer to the test set out in Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24.  Therein, the Supreme Court laid down a 5 question test (now known as the Karshan test) to ascertain if a person is an employee or a contractor.   

1.               Does the contract involve the exchange of wage or other remuneration for work?

2.               If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

3.               If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

4.               If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

5.               Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.  

The Courts lay particular focus, when applying the test, on whether or not the worker is required to perform the services personally (i.e. can he delegate) and on the level of control applied by the employer in terms of when/ where/ how the services are provided.  The Complainant had no opportunity to delegate his functions/duties and control was fully exercised in terms of the location of his work, the rate of pay, the work undertaken etc.  In real terms, he remained an employee performing precisely the same work he had done, both before and after the period of notional contracting/ self-employment, albeit his hours were not pre-determined and he worked around his actual availability. 

He continued to work, without interruption, for the Respondent during the period from 2015 to October 2016, at which point he was sent by the Respondent on assignment / secondment to the Respondent's then parent company in Dubai, Averda (from whom this Respondent - i.e. Thorntons, acquired the City Bin in 2023).   He remained on assignment / secondment in Dubai until December 2017, along with the Respondent's former CEO, Gene Browne, former CFO, Louise Niemann and former managing director, Niall Killilea. 

 The Complainant, in tandem with the Respondent’s senior management team, continued to work for the Respondent, albeit at its direction, he (and they) were working for the parent company to support an existing and similar business in the United Arab Emirates.  During this period, the Complainant was nominally paid by Averda, for work permit and immigration purposes.  The others worked somewhat more intermittently and consequently, did not require permits and as such, it is his understanding that they continued to be paid by the Respondent - albeit they too were working in the UAE at the behest of the Respondent - supporting the requirements of its parent.  This arrangement continued until December 2017, at which point he was instructed to return to his Customer Centre Manager role in Oranmore.  He worked continuously in that role (from January 2018) until his dismissal in August 2024. 

The Respondent flatly refused to recognise his service prior to 2018.  Moreover, in recognition of his long service, he received an award of €750 in April 2023.  Also, at this time, he was informed by the then MD, Niall Killilea, that he was being awarded an addition 3 additional days leave, again, in recognition of his long-service.  This additional leave was not confirmed in writing, but the relevant leave entitlement was increased from 20 days to 23 days on the City Bin Co.’s then HR system (Flex).

 A copy of the communication, dated 18th April 2023 from Gene Browne, former CEO, recognising the Complainant’s long (15 year) service was supplied.   

 Purported Redundancy

 The Respondent’s stated reason for refusing to recognise the Complainant’s additional 3 days’ annual leave was that it had to proceed on foot of materials received in its preacquisition due diligence exercise.  

Consequently, the Complainant submitted a Data Subject Access Request (“DSAR”), so that he could establish what had allegedly been stated about his service/ leave entitlement in the course of the aforesaid due diligence exercise.  This was submitted on 12th July 2024.  

Some 3 days later (on 15th July 2024), the Complainant received an email from Claire Scahill, HR Manager with the Respondent, asking him to attend a meeting two days later, on Wednesday 17th July 2024, ostensibly to discuss his role/access request.  There was no mention in that email that the meeting was being primarily convened to discuss the proposed redundancy of his role.  When he attended (completely unrepresented and unprepared), his line manager, Lorraine Spierin, Customer Care Manager was also present.   The meeting was almost exclusively spent discussing the proposed redundancy of his Customer Centre Manager role.  He was unequivocally told (by both Ms. Scahill and Ms. Spierin) that Ms. Spierin would absorb all of his duties, following his redundancy.

 A follow up meeting was held on 30th July 2024, when he was told that the only other roles available for consideration were low level manual trunk crew or telephony roles, on much lower salaries – and he was asked if they were of interest.  He signalled that they would not be suited to his skillset.  He was then handed a pre-prepared redundancy letter (suggesting clear pre-determination) and he was told that he was pre-approved for annual leave until the end of August - and that his role would be redundant effective 28th August 2024. 

We refer to the letter of 30th July 2024 which confirms the Complainant’s redundancy and advises (in highly generic terms) that it is the apparent result of the integration between TCBC (i.e. the City Bin Co.) and Thorntons Recycling.  It refers to the fact that in the meeting they had “discussed the option of current vacancies within the business to which you have advised that these are not reasonable for you” – a reference to the manual truck crew and telephony roles. 

For what it’s worth, the Complainant did not in fact realise that this letter had been furnished to him and/or that he had been offered an opportunity to appeal the decision, in circumstances where it was appended to another longer letter of the same date (i.e. 30th July 2024) which purportedly set out his ‘severance terms’ and which included a Form of Acceptance, which required him to commit to fully and finally settling all claims against the Respondent, despite the fact that the said letter only provided for payment of the Complainant’s minimum statutory entitlements – i.e. statutory redundancy, accrued salary and accrued annual leave.  For clarity, no ex gratia sum was offered to him as consideration for the proposed compromise of his employment rights/ entitlements. However, the Complainant is aware that following his departure (on 30th July 2024), his duties were not subsumed by Lorraine Spierin and instead, his pre-existing role and the role of SF  (his assistant - officially titled Assistant Customer Centre Manager), were re-named and split into two equivalent roles, both continuing to report to Ms. Spierin.  His duties were joined with those of Ms. D  and two ‘nominally’ new roles (replacing the two old roles) were created, namely ‘Commercial Division Supervisor’ and ‘Household Division Supervisor’ - and their direct reports were divided between the two roles.  

The newly created ‘Household Division Supervisor‘ role was filled on 15th August 2024 by Ms SF and her job description (which the Complainant has secured a copy of) included the Complainant’s duties.   She was moved into that department from the lT/ Proiects Department - in effect to replace the Complainant.   This is entirely at odds with what the Respondent informed the Complainant would occur – and inconsistent with what was represented to him. Notably, Ms. Spierin did not assume his duties.  

The only roles that he was informed were available as at 30th July 2024were that the truck crew and telephone answering roles, whereas in fact, there was a role created for Ms. SF (who has since left the Respondent’s employment) that was perfectly suited to him and was filled (at the latest) just 15 days after he was given notice and a full 13 days before his employment officially terminated.  

In effect, 2 existing roles were replaced by 2 slightly different roles.  It would appear that Ms. D was, in effect, was promoted and that two middle management roles were created – i.e. that of Commercial Division Supervisor and Household Division Supervisor replacing the roles of Customer Care Manager and Customer Care Assistant Manager. The Complainant is also aware that Ms. D received a salary increase in line with the improvement in the status of her role. 

The Complainant supplied and referred to a copy statement provided by a former colleague confirming the position within the Respondent, following his departure.

Observations on the purported redundancy  

Given the timing of the purported redundancy, the Complainant believes that the reason the supposed redundancy was conceived was in retaliation for his querying his annual leave entitlement and for submitting a DSAR.  Regardless of the motivation for the redundancy, it is his submission that the redundancy was a sham and was substantively unfair.  Moreover, the procedure employed was entirely deficient in several respects, including: 

the failure to provide him with any advance notice of the supposed ‘at risk‘ meeting;

failing to permit him to attend with representation;

failing to afford him a reasonable opportunity to consider what was proposed;

providing him with a patently false narrative on what was intended to occur, following the purported re-structure and in particular, falsely claiming that all of his duties would be assumed by Ms. Spierin;

tendering to him a pre-prepared letter in the middle of the second meeting on 30th July 2024, clearly signalling pre-determination;

dishonestly advising him that there were no suitable alternative roles, in circumstances where two ‘new’ roles for which he would have been eligible to apply, were created prior to his employment actually ending; and

failing to appropriately consider alternatives to redundancy. 

Alleged failure to appeal

 It is asserted that the Complainant ought not to succeed in his complaint, in circumstances where he failed to avail of the opportunity to appeal the decision to make his position redundant.   

Whilst the Complainant cannot dispute that the second (shorter) letter of 30th July 2024 was furnished to him, in circumstances where it was appended to a longer letter outlining his so-called severance terms and including a Form of Acceptance, his attention was not drawn to it and he ultimately only became aware of it (and his apparent right to appeal –when the Respondent filed papers with the WRC pre-hearing).   

He was handed both pre-prepared letters of 30th July 2024 in the course of the meeting on that date and informed that his role was being made redundant.   There was no mention (verbally) of the fact that he was entitled to appeal the decision. 

It is apparent from the Complaint Form filed that the Complainant expressly stated “failing to afford me an opportunity to appeal the decision, inter alia” as one of the grounds/ bases of his appeal.  Self-evidently, that was referenced in circumstances where, at that point (nearly 6 months after his employment had ended), he didn’t realise that he had been afforded a right to appeal. 

Moreover, even if he had become aware of his right to appeal, the stated period for service of same was 5 days.  On the basis that he learned of the primary ground for this complaint (namely, the fact that the redundancy was in fact a sham redundancy - for the reasons outlined above), more than 5 days after he was informed of his termination (and long after the window for appealing closed), he would not have been in a position (through ignorance), to pursue that line of appeal, which he was required to commit to writing.   

It will be appreciated that his knowledge of the bogus nature of the redundancy only emerged subsequently, long after the purported opportunity to appeal would have expired. 

It is submitted that the manner in which the redundancy was communicated contributed to the Complainant’s failure to understand or appreciate that he had an apparent right to appeal.  Instead of confirming his redundancy in a single comprehensive letter, two letters were in fact presented to him, creating confusion. Regardless, to the extent that this represents a procedural failing on the part of the Complainant, it is submitted that he could not have known of the bogus nature of the redundancy at the time any opportunity to appeal expired.   

The Respondent’s procedural failings are considerably more grave – as outlined above.  It would be perverse if the Respondent, despite its many and obvious procedural failings, was in a position to rely upon this letter, which the Complainant failed to note, to successfully defend the within claim, not least given that the principal ground to challenge the redundancy only emerged after the opportunity to appeal had expired.

 Unfair Dismissals Claim

 Fair Dismissal

 In a claim for unfair dismissal, the “burden of proof” rests with the employer to prove the “fairness” of the dismissal.  Section 6(1) states that a dismissal will be deemed “unfair” unless the employer can demonstrate that “having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

 A dismissal is deemed “fair” if it substantially premised on one of the “fair” grounds, as contained in Section 6(4) of the Unfair Dismissals Act, 1977.  One such ground is:   The redundancy of the employee;

 However, it is submitted that the Respondent did not deal honestly with the Complainant and misrepresented the nature of the ‘redundancy’ claiming that his role was being terminated and his duties entirely subsumed into the role of his line manager, which was entirely false. 

It failed to disclose to him that two new positions were being created and falsely informed him that the only vacancies that were available were manual truck crew and telephony roles – in circumstances where it clearly new that it was created the Commercial Division Supervisor and Household Division Supervisor roles before his employment had formally terminated. 

This is evidence of patent bad faith on the part of the Respondent. 

Moreover, it is submitted that in procedural terms, the Respondent has not met the requirements of a fair redundancy process, as outlined above.  Its behaviour was arbitrary and unreasonable and it would appear that it was motivated by malice, in circumstances where it would appear that its primary motivation for concocting the purported redundancy was the Complainant’s challenging its (entirely wrong) refusal to recognise his additional leave entitlement and his consequent submission of a DSAR. 

Legal Considerations  

It is submitted that there were other factors (the Complainant’s agitation for his full leave entitlement and submission of a DSAR), that prompted the within purported redundancy.  It is submitted that the within redundancy fails the “cause and effect test”, which was identified in Edwards v Aerials and Electronics (Ireland) Ltd UD236/1985.  In that case, the EAT refused to accept that the redundancy of a Managing Director of a loss making company was genuine, when it heard about major disagreements which were occurring at board level, which it found had prompted the redundancy process.  The EAT held: 

“We recognize that the function of a full time managing director no longer exists but we must direct our minds to the cause and effect relationship between redundancy and dismissal... in other words, was the reorganization a cause or a consequence? And on balance, we're inclined to the latter view.”  

There is further an issue with respect to the failure to engage in a genuine redundancy consultation and the fact that the Complainant was misled as to what would happen in the aftermath of the redundancy – i.e. he was informed that his duties were to be subsumed entirely by his line manager, which did not in fact transpire. 

In JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J. stated : 

“It may be prudent and mark of a genuine redundancy that alternatives to letting an employee go should be examined”

In the within case, the real alternatives to redundancy and what would actually occur after he had been notified of his dismissal were concealed from him.  This was not a genuine redundancy consultation. 

In Jeffers v DDC Ireland Ltd. UD 169/2000, the EAT held that where a person was being made redundant, there was an onus on the employer: 

“(i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant.” 

It is submitted that the Respondent failed patently to offer the Complainant the positions that it knew it was creating following his departure. 

In Keogh v Mentroy Limited UD 209/2009, the EAT found in favour of the employee in circumstances where performance issues had been raised.  In that case, there had been a downturn in business but the employer only selected the manager’s role while other more junior roles were being filled:  

“In light of these extraneous considerations it seems that the employer failed to take an overall view of the workplace with the objective of seeing what would be the fairest thing to all its employees. The Tribunal does not doubt that the claimant would have returned to the shopfloor on a lesser salary rather than be faced with unemployment. There were many options open to the employer including short-time and layoff…”  

Plainly, if the Respondent had been honest with the Complainant, he would have become aware of the creation of the new ‘Commercial Division Supervisor’ and ‘Household Division Supervisor’ roles and he would have been afforded an opportunity to apply therefor.

 It is submitted that the Adjudication Officer ought to have regard to the provisions of S. 6(7) of the 1977 Act (as inserted by the 1993 Act) in determining if the within dismissal is unfair.  This permits the Adjudication Officer to have regard if “it is appropriate to do so” to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.   This provision was relied upon in Barton v Newsfast Freight Ltd UD 1269/2005, in determining that a redundancy was unfair by reason of the poor manner in which it was handled.

 It is submitted that the within redundancy was poorly handled and important facts were concealed from the Complainant, not least, the creation of the roles of ‘Commercial Division Supervisor’ and ‘Household Division Supervisor’ roles which subsumed his duties.  Moreover, the Respondent acted deceitfully in representing to him that his line manager would assume all of his duties.

 It is submitted that the within dismissal is patently unfair. 

Loss & Mitigation  

The Complainant earned €45,000 per annum and a bonus, equating to €10,000 in the year prior to his dismissal.  He was not employed in November 2024, when the bonus for 2024 would be determined. In an effort to mitigate his loss, the Complainant (a qualified primary school teacher) immediately sought work in that area.   He was offered a role as a substitute teacher for a period of 8 weeks with a school commencing on 28th August 2024 when he accepted.

 He was encouraged to apply for a substitute role in that school, from November to the end of the academic year and he went through an interview process and secured the role, meaning that he was employed up to 24th June 2025.  He resumed employment at the School pursuant to a substitute contract with effect from 28th August 2025 and has an interview pending (likely to occur during the first week of November) to establish if he will be offered employment with the school for the remainder of the academic year.

During the summer, teaching work is not available to him.  He is not paid for summer work.  Moreover, he is not paid during the mid-term, Christmas and Easter holidays and even if he is rostered for every week of the teaching year, he is only paid for 35 weeks per annum. Consequently, he applies for and is paid unemployment benefit for the final weeks of June, and the months of July and August 2025 and for the mid-term, Christmas and Easter breaks.   As such, he does not earn any income for 17 weeks of the year.  The employment is precarious and whilst he is fortunate that he has been in a position to work continuously as a substitute teacher since his employment was terminated without any gaps, he does not have tenure and there is no guarantee that his substitute role will continue until the end of the present academic year.  He is currently covering a permanent teacher who is absent on maternity leave and were she to return to work, his regular substitute teaching employment would terminate. 

His gross fortnightly income for substitute teaching €2,275.60, which equates to €39,823 per annum. His gross annual salary with the Respondent was €45,000, plus he earned an annual bonus, which equated to €10,000 in the last year for which it was awarded (equating to €55,000 gross for the year). As such, there is a significant differential (€15,000) between his current gross earnings and his pre-dismissal earnings. 

It is likely to be several years before his earnings as a teacher reach the earnings he achieved with the Respondent, meaning that he is suffering a continuing and significant loss on a multi-year basis.

 Claim pursuant to the 1973 Act  

At the time of his dismissal, the Complainant had continuous service dating back to 1st September 2010.  His dismissal took effect on 28th August 2024, meaning that he had 14 years continuous service at the date of his dismissal. 

Per the 1973 Act, he was entitled to 6 weeks’ notice and not the 4 weeks’ tendered in the present instance.

 Claim pursuant to the 1994 Act  

The Complainant has not been provided with an accurate statement of his terms and conditions of employment.. His service dates back to 1st September 2010, but this has not been confirmed to him and the failure to correctly note this in a statement of terms and conditions of employment has caused confusion in respect of his entitlement to notice and statutory redundancy. 

Furthermore, his additional leave entitlement was not been appropriately confirmed in writing and whilst the Flex system did note his additional entitlement, it was not correctly migrated to the Respondent’s system.  As such, he was forced to agitate to have his entitlement recognised, leading to the Respondent initiating retaliatory action against him.

 Claim pursuant to the 1997 Act  

We refer to section 4.1.  In short, the Complainant was awarded 3 additional days leave, in tandem with receipt of an award for long service in 2023. 

This was not confirmed in writing, albeit he observed that his entitlement was correctly entered onto the Flex HR system. 

However, post-acquisition, the Respondent refused to recognise and in fact denied him his full leave entitlement. 

The actual loss is relative minor – amounting to 2 days up to the date of his termination, but the breach itself set in train the Respondent’s move to unlawfully dismiss him in the present case. 

Claim pursuant to the 1967 Act

 We refer to the clause above, dealing with the issue of the Complainant’s continuous service. If the Complainant is found to have been fairly dismissed, then the Complainant asserts that his statutory redundancy entitlement was under-calculated. The Respondent only recognised his service from 19th February 2018, in lieu of from 1st September 2010. This resulted in the statutory redundancy entitlement being under calculated by 8 years and 5 months and 19 days.  The shortfall would equate to c. €8,967.85.

 The Complainant awaits the Respondent’s justification for his dismissal, but submits that based upon the facts as outlined herein and the foregoing submissions, he ought to succeed in his complaints.

The Respondent written submission consisted of a number of documents relating to the employment of the Complainant and they relied primarily on their oral evidence given at the Hearing.

The Respondent relied on the fact that when they organised due diligence by a Third Party in their takeover of the City Bin Company the Complainants service was showing as starting in 2018. The Respondent alleged there was no evidence of continuity of service since 2010.

The Respondent denied the Complainant was due 3 extra days holidays based on his service record.

The Respondent (in their evidence outlined below) relied on the fact that the Complainants work would be absorbed into his Managers role and his role was therefore redundant and he was not unfairly dismissed.

Preliminary issue; time limit

This requirement to show reasonable cause for an extension of time for the submission of a complaint beyond 6 months is a common clause amongst employment law statutes and therefore case law arising under difference pieces of legislation can be adduced. In this regard, a commonly cited dictum is that of the Labour Court in Department of Finance v IMPACT. In considering the standard to be applied, the Labour Court said that, in considering if reasonable cause exists, it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. The Court continued: “The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time. While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

Having considered the evidence presented by the Complainant Representative and completed some internal WRC enquiries on my own accord as part of my investigative role, I have concluded it is reasonable to accept that the Complainants Representative submitted the claim form to the WRC via his computer on February 25th 2025 (a few days prior to the 6 months required to submit the complaint). The WRC policy is that a complaint form is confirmed as submitted only when the Complainant receives an email to that effect noting the date and time it was received, This email is automatically generated and in this instance that email did not go to the Complainant Representative and it was only after they pursued the issue that the got notification of the complaint being submitted, some few days after the 6 month time limit had expired. I have considered the particular circumstances of this case and conclude that while the Complainant Representative attained a “submitted” response on his computer, the explanation for the delay is that the complaint may have been submitted on a pdf form which had since been updated by the WRC and therefore not automatically accepted by the WRC system. My conclusion is the Complainant Representative had very good reason to think the complaints had been submitted within the 6 months and I conclude that sufficient reasonable cause grounds exist, in these particular circumstances, to explain the very short delay and to grant an extension of time for the submission of the complaints outside the 6 month time frame and I accept jurisdiction of all complaints.

The length of Service

The first matter for consideration is the Complainants start date as this affects his redundancy calculation, his claim for holiday pay and the number of weeks notice pay he was entitled to. The Complainants case is he commenced employment in 2010 with unbroken service. The Respondents case was that, based on the due diligence conducted on their behalf, during the acquisition, he started in 2018. The Complainants case is that even though at times he was invoicing the company for his time in Dubai, he was still an employee and this was recognised though the City Bin CEO giving him a 15 year service award and 3 extra days holiday, evidenced by an email to hm dated April 18th 2023 from the CEO.  This email was produced to the Hearing. The Respondent argued they had no evidence to support that the Complainant was continually employed since 2010 and pointed to the contract of employment given to the Complainant in 2018 with a start date of 19/2/2018. While this contract definitely appears to be one for a new starter and was given on City Bin headed paper, the copy supplied to the Hearing had no signatures on it from either the City Bn Company or the Complainant and there was no evidence from a City Bin employee to explain why the contract was provided (or indeed the email stating he had 15 years service in 2013) so therefore the unsigned 2018 contract supplied has little, if any, evidential value. A contract showing the Complainant starting in 2007 and an induction document showing the Complainant getting induction training in 2006 was supplied. The persuasive document for the Adjudicator is the email from the CEO recognising the 15 years service of the Complainant in 2023 and in reality the Respondent had little documentary evidence of value to support their case regarding a 2018 start date. On the balance of probabilities, I conclude that the Complainant has worked for the Respondent since 1/9/2010 and while his service went through some short terms “rearrangements” during assignment this was to suit both parties circumstance’s.

The Substantial complaints

With regard to the Unfair Dismissal and Redundancy complaints, the Respondent gave evidence on the issues.

Ms. Lorraine Spierin, Customer Service Manager gave evidence how the redundancy cane about. She asked the Complainant for a list of his duties and she went through them and decided they were going to be absorbed by other departments and her.  She stated that redundancy was not pre determined in advance of the first meeting with the Complainant and she was trying to mirror Thorntons in her approach. She advised there was only going to be one Manager in the structure. On cross examination the Witness was asked did she create a structure with two units and two Supervisors, Household and Commercial,.  after the Complainant left and she agreed she did. She advised there was 10 Agents or so in the office and the were distributed to the two roles and the Supervisors role was supervisory, training, ensuring calls are answered promptly and that she had implemented a new operational system which improved the efficiency of the Customer Support Department in Galway and that she looked after the training associated by the new system. The Witness stated that she was not sure what the Complainant was doing before the Acquisition. Ms. Spierin was asked did the Complainant do any training in his role and she stated she would have done the majority of training but that the Complainant did some. The Witness was asked about the job dealing with sales and suppliers and she stated none of that was mentioned in the job spec. She agreed he managed the staff. She was asked about the Complainant raising his start date and the number of holidays he was entitled to with her and she did not accept he was entitled to these dates and days off.

The Witness was questioned about when the issue to discuss redundancy arose and her recollection was it was before the Data Access request was made. She was asked did she tell the Complainant to have a Representative present at the meeting to discuss his redundancy and she said no.  She was asked did she tell the Complainant in advance of the meeting that redundancy would be discussed and she replied he was not ambushed. The Witness was questioned about the meeting and advised that the meeting took about 40 minutes and there was no minutes. The Witness was asked did they discuss his role at length or did the Complainant see himself anywhere else in the company and the Witness replied she “cant remember to be honest”. The Witness was asked would it not have been appropriate to tell the Complainant in advance of the meeting what it was about and she replied he had been told it was to discuss his role. Ms. Spierin was asked did she discuss the redundancy in advance with Ms. Cahill and she replied no decision was made in advance of the meeting with the Complainant. Ms. Spierin was asked should she tell an employee in advance if they are going to discuss redundancy at a meeting and she agreed yes and that they should have the choice of a representative or colleague present.

With regard to the two roles created soon after the Complainants employment was terminated Ms. Spierin stated they discussed the only roles available on the day and those roles were not available then. Ms. Spierin advised she told the Complainant she would be assuming his role. Ms. Spierin was asked were any changes to the structure mentioned in the meeting with the Complainant and she advised they spent most of the time (about 30 minutes) discussing the redundancy and about 10 minutes discussing his start date and holiday entitlement. Ms. Spierin was asked did she tell the Complainant that other people would be taking on his duties and that before the redundancy there were two supervisory roles, the Complainant and his Assistant, and after the redundant there were two new supervisory roles created, one in Commercial and one in Household. Ms Spierin advised she did not discuss this with the Complainant.  Ms. Spierin was asked when did she implement the new structure and she could not remember exactly but after some discussion agreed it was between 2 and 6 weeks after the redundancy took effect. Ms. Spierin was told the Complainant could produce a Witness that when that person returned after summer leave to employment in September the new structure was in place and that Ms. SF had been promoted from Projects to the Household Supervisor role. Ms. Spierin accepted Ms. SF was in the role from October and she was not in the Department when the Complainant was made redundant.

It was put to Ms. Spierin that she replaced the Complainant and his Assistant Supervisor with two Supervisors and they were basically doing the same roles as before the Complainant was terminated.  Ms. Spierin did not agree and stated that there was more focus on calls and a lot of the administration was being done in Head Office. It was put to Ms. Spierin that she knew well that the 2 new roles would be created at the time of the redundancy of the Complainant and she replied she did not agree.  

It was put to Ms. Spierin that the Complainant was made redundant because he had asked questions about his start date and his holiday entitlement and that he had made a DSAR request and he had been terminated not in good faith.

Ms. Claire Scahill, HR Manager gave evidence to the Hearing. She advised she had seen a contract on file from 2018 and was not in a position to comment on the prior situation. She was cross examined about the letters she prepared for the two meetings on July 17th and 30th.  She advised they were typed in advance and given to the Complainant at the meetings. She was asked why she asked the Complainant to sign a Form of Acceptance giving up his rights when the company were giving him no compensation for doing so and why would he waive his rights for nothing. Ms Cahill said it was a standard termination agreement.

Ms, Cahill was asked did she tell the Complainant about his right of appeal and she initially stated she could not remember and then stated she was 99.99% sure she did say it and that he did not appeal it. Ms. Cahill was asked given the appeal time was only 5 days did she agree that the Complainant could not have known within this time of his major ground for contesting his dismissal as he did not know within that time about the two new Supervisory roles being created and that would it not be unfair to dismiss his claims because he did not know the grounds for same at the time he was informed of his dismissal. Ms. Cahill replied he had been given the right of appeal.

It was put to Ms. Cahill that the Complainant could give evidence that his job spec was the same as that done by Ms. SF and Ms. Cahill stated that they discussed the only available roles at the time and he was given his statutory entitlements. She felt he had left the company on several occasions and his start date was not continuous since 2010. Ms. Cahill stated there was no evidence of a secondment contract to Dubai and why would the City Bin Company have given the Complainant a new contract in 2018 if he was in continuous employment.

Ms. Cahill was further cross examined on her evidence and stated she was in HR since 1997 and with the Respondent since 2012. She was asked did she agree with Ms. Spierin that the Complainant should have been informed of the purpose of the meeting, (redundancy) and she stated yes this was an oversight. She was asked did she agree the Complainant should have the right to be accompanied to the meeting and she replied yes that they should have told him. When asked why he was not told he could bring a Representative to the second meeting she replied he never raised the issue. Ms. Cahill advised she may have met the Complainant once or twice since the acquisition and she did not know anything about him from 2010 to 2023 and she could only go on the information in his file. She agreed she could not provide sworn evidence to contradict the Complainants claim re his start date. Ms Cahill was asked when Ms. SF started in her new role and she thought it was 6 to 8 weeks after the Complainant was terminated and that this structure was not up for discussion at the time of the redundancy. On further questioning she advised Ms. SF was given her contract on October 1st and that it may have been discussed a week or two before that with Ms. SF.

Ms. Cahill was asked about the 15 year service email from the CEO to the Complainant and she stated she never had access to that email in advance of the submission for the Hearing. She was asked was the reason he was picked for redundancy was because he had asked for an additional 3 days holidays and queried his start date. Ms. Cahill stated the system showed he started in 2018 and she was asked did not the CEO email overrule the system. Ms. Cahil replied if he had continuous service since 2010 he would have been entitled to the extra 3 days but there was no evidence on the system to support that start date..

In response to a query from the Adjudicator, Mr. Mc Sweeney advised the Complainant submitted invoices while he was in Dubai on secondment but this was by agreement with the Company and its parent in Dubai at the time to comply with local rules of employment and the City Bin Company invoiced its parent company for the Complainants services.

The Complainant Representative stated their preferred remedy would be under the Unfair Dismissals Act, should the Adjudicator find the dismissal unfair. In that context, I would not allow the Complainants appeal under the Redundancy Payments Act. I will deal with the issue of notice pay and holidays due based on my service date conclusion.

In Ray Walsh -v- Econom Digital Finance Ltd ADJ-00029093, the Adjudicator found in favour of the Complainant. The Adjudicator noted that, in a redundancy context, where there is no possibility of an alternative job, the process of consultation usually addresses the terms on offer. Having reviewed the caselaw, Barton v Newsfast Freight, Mulligan v J2 Global,  O’Kelly v Xsil and Fennell v Resource Facilities, the Adjudicator in that case stated that engagement with the employee who is the target of redundancy is the cornerstone of reasonable treatment.  The Adjudicator found that  “it was disrespectful to the Complainant to invite him to a meeting with no forewarning of the subject-matter, and to announce that his job was redundant.  No credible explanation has been given for the decision of the managers not to engage with the Complainant to identify a suitable alternative role, or to extend his notice period so that he could find another job”

Conclusions

Having considered the evidence of the parties, I have concluded the Complainants position was not redundant and was divided into two Supervisory roles reporting to Ms. Spierin. The fact that these Supervisory roles were created so quickly after the Complainants employment was terminated leads me to believe that there was some pre planning in the Respondents actions, and if not, then they failed to give satisfactory consideration to the retention of the Complainant in a restructuring of roles, and should have given the Complainant the option of fulfilling one of the roles with his salary either been red circled or as in some cases, a reduced salary with some form of compensation for the loss of salary, normally two years the loss. This would have been a matter for negotiation between the parties. There was insufficient evidence to give any credibility that Ms. Spierin assumed the role of the Complainant.   In addition, the Complainant was not informed in advance that his job was in jeopardy when invited to a meeting which discussed that and he was also not told he had the right to representation at the meeting. I find that the complaint succeeds on both the substantive and procedural grounds. I decide that the Complainant was unfairly dismissed. I have considered the Complainants loss of earnings and given the possibility of a full time Teaching role shortly after this Decision and that his loss of earnings calculations included a possible bonus opportunity of 10,000 Euro per year, and as most bonuses are discretionary and not guaranteed, I award him 15,000 Euros as a just and fair compensation for the unfair termination of his employment. For the avoidance of doubt this is in addition to any redundancy pay received to date.

With regard to length of service, I heard two conflicting pieces of information. The Bin City CEO gave the Complainant a 15 year Service Award in 2023 and the Complainant supplied an employment contract dated in 2007. He explained his time in Dubai to work with the parent company was by mutual arrangement with his Employer. The Respondent submitted a contract, unsigned by either party, dated in 2018. Having considered the evidence put before me I decide that I prefer the Complainants evidence regarding service. The CEO email is critical to this assessment.  I deem that the Complainant commenced employment in 2010 and was entitled to 3 extra days holidays in 2024 and should be paid 519 Euros for holidays due. This clarification of his service also entitles him to two extra weeks of notice pay and I award him 1,731 Euros compensation for breach of his employment rights regarding notice pay.

Because the above Unfair Dismissal complaint is awarded in favour of the Complainant, I deem his above appeal under the Redundancy Act to be not well founded. For the avoidance of doubt, had the Unfair Dismissal complaint been found to be fair the Complainant would have succeeded on his redundancy claim for greater service to be recognised.

With regard to the claim regarding not receiving an updated statement of terms and conditions of employment I find this complaint not well founded in all the particular circumstances of this case.

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 Complainant was unfairly dismissed and award him 15,000 Euros for breach of his employment rights. CA-00069953-001

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

I find the complaint under the Minimum Notice and Terms of Employment Act 1973 well founded and award the Complainant the equivalent of 2 weeks compensation amounting to 1731 Euros for breach of his employment rights.  CA-00069953-002

I find the complaint under the Organisation of Working Time Act 1997 well founded and award the Complainant the equivalent of 3 days pay in compensation amounting to 519 Euros for breach of his employment rights. CA-00069953-003

I find the claim under the Terms of Employment (Information) Act 1994 not well founded. CA-00069953-005

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I do not allow the appeal.  CA-00069953-004

Unfair Dismissal