ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002663
Complaints for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Date of Adjudication Hearing: 27/10/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant initially joined the respondent company as a warehouse operative/driver in July 2008 and eventually was made permanent and was promoted to the grade of supervisor in 2011.
In 2015 the company announced that it intended to implement a number of redundancies as a result of adverse trading performance which resulted in trading losses in each of the previous five years.
On June 2nd the Minister for Jobs, Enterprise and Innovation was advised of a collective redundancy situation and that the respondent would be commencing a consultation process. It did this mainly through the recognised trade union although the complainant is not a member of the union.
It sought four redundancies in the warehouse where the complainant was employed and proposed to select on the basis of ‘Last in First out’ with the agreement of the trade union and this resulted in the selection of the complainant.
There is a significant conflict in the evidence about the notice given to the complainant and whether various meetings involving the complainant took place and these are considered further below.
Also, the respondent raised by way of a preliminary matter whether the claim was within the time limits and this is considered below.
Respondent’s Submission and Presentation:
The respondent says that there were a number of engagements with the complainant over the redundancy. The first of these was on June 2nd 2015 as part of a general consultation. Evidence was also given of a meeting on June 30th at which details of the proposed redundancy and the basis for selection was communicated.
It also says that by letter dated July 2nd 2015 but possibly not sent for a few days, the complainant was given notice that his employment would terminate by reason of redundancy on July 31st. On July 13th the complainant sought to leave work early and the respondent assumed that this was in pursuit of alternative employment.
Evidence was given of the starting dates of those within the warehouse pool and these showed that the complainant fell to be selected on the basis of his service.
Complainant’s Submission and Presentation:
The complainant said at the hearing that the first time he became aware that he was on notice of redundancy was on July 17th 2015 (although in his formal complaint to the WRC he states this date as being ‘on or about July 13th’).
He immediately set about securing alternative employment and succeeded in doing so. He left the company on July 24th 2015. He says that apart from the general meeting on June 2nd he was not aware that he was being considered for redundancy until either of the dates in July referred to above.
His first claim is that he was dismissed unfairly in that a proper redundancy selection process was not applied.
There was a great deal of evidence about whether various exchanges between the parties took place. The complainant denies that he received the letter issued in early July, or that he met the respondent on June 30th or on July 13th.
The respondent was clearly at fault in not ensuring that there was a record of the various communications having been received, in particular the letter of notice. There may, of course be some other reason why the complainant did not receive the letter, but again this seems unlikely.
The respondent representative at the hearing, a respected HR consultant, also gave direct evidence that he was personally present at the meeting on June 30th and I accept that evidence.
Likewise, I see no reason why the respondent would fabricate the exchange it alleges took place on July 13th of which the respondent had no recollection.
I found the evidence of the respondent not to be fully credible in respect of his recall of these events.
While the complainant may have been extraordinarily fortunate in completing his search for new employment between the date on which he alleges he was first told of the proposed redundancy, July 17th (a Friday) and his securing an offer of alternative employment on the 20th (the following Monday) it seems much more probable that he was well on notice of the situation earlier in the month as the respondent claims.
He left the company on July 24th and commenced with his new employer on the following day.
In view of the late coming on record of the complainant’s legal representative I invited the parties to make, and respond to further legal submissions on this point after the hearing.
In dealing first with the complainant’s submission reliance was placed on the Redundancy Payments Act as follows. It says;
‘Section 10 of the Redundancy Payments Act 1967, is unequivocal in support of the Claimant’s contention that on the facts of the within matter and not withstanding the employee having notified his employer of his intention to leave his employment prior to the date of termination, the employment relationship was nevertheless ended by the Respondent employer;
Section 10(1) this section shall have effect where –
An employer gives notice to an employee to terminate his contract of employment,
At a time within that obligatory period of notice, the employee gives notice in writing to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire.
(2) Subject to subsection (3), in the circumstances specified in subsection (1) the employee shall, for the purposes of this Part, be taken to be dismissed by his employer, and the date of dismissal shall be the date on which the employee’s notice expires.”
The complainant continued with further submissions on the steps to be taken in a redundancy situation and on the documentation required.
The point is well made by the complainant that if the Respondent had complied with the foregoing regulations, he would have avoided the confusion now presented in the case, as the stipulated form specifies date of notice and date of termination. The complainant says that throughout the entire proceedings the RP50 form has not been produced.
However, the complaint in this case is made under the Unfair Dismissals Act, not the Redundancy Payments Act.
The question I have to decide is whether an unfair dismissal, or in this case any dismissal occurred. The section cited of the Redundancy Payments Act relates to the provisions being made for redundancy.
The question of the effective date of the termination of employment has been much rehearsed in this case (and in a UK case Thompson v GEC Avionics EAT/330/91 submitted by the respondent, and for the same reason in both cases; viz whether the complaint is within time).
But the starting point has to be whether a dismissal within the meaning of the Unfair Dismissals Act occurred at all.
The only provision in that Act relevant to where an employee submits his notice appears at paragraph (b) of the Definitions and relates to constructive dismissal which is not at issue here.
To succeed otherwise in a complaint under the Unfair Dismissals Act there must be evidence of an actual dismissal, as that is generally understood. There is none in this case.
It is clear that the complainant left of his own volition on July 24th 2015 admittedly under the threat of redundancy, but nonetheless of his own accord. Fully aware of the impending situation he successfully sought and secured alternative employment.
And on this point the entire case turns, by way of the preliminary point, and including the related preliminary point as to whether the complaint was within time. (On the particular case raised regarding the delay I would have been disposed to grant the extension of time but that does not now arise).
In fact, the decision of the complainant to leave the company, under whatever pressure, means that no dismissal took place at all. For that reason all the above complaints fall.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 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.
For the reasons set out above I do not uphold Complaints CA-00002549-001, 002 and 003 and the complaints are dismissed.
Dated: 9th December 2016