ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001054
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001385-001 |
10/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001385-002 |
10/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00001385-003 |
10/12/2015 |
Date of Adjudication Hearing: 31/05/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
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 complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
Page 13 of Form states "One of the complaints is under Holiday Pay. When the complainant spoke to citizens Information he was told that he was left short of 3.8 days of my annual holiday. When he spoke to company Director her direct words were "You got what you were entitled to". |
Page 12 of the Form states "Employer had lost several contracts and the complainat was told that there was no work available for him." Page 13 of the Form states: The complainant wants to make a complaint under unfair Dismissal + unfair selection because when he was told that there was no work available. He found out that other people were doing his job. He was with him 10 year and now the people who were on sessional work are doing the jobs that he was doing. As if you are made redundant your job should be available. Page 27 of the Form states "The complainant feels that he was unfairly dismissed and made redundant as his job is still there another other seasonal + part time workers are doing this. If you are made redundant this means that your job is gone. This was not the case. |
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Respondent’s Submission and Presentation:
In January 2014 the respondent employed 3 full-time employees, 13 part-time employees and 2 working directors. In September 2014 the respondent was outbid for a contract that they had operated for 9 years. Other contracts were re-negotiated with consequent reductions in service requirements. The part-time workforce reduced by two. In 2015 another contract that had been held for 11 years was lost with three employees transferring under TUPE regulations. There were other reductions in the service requirements of several customers. In September 2015 it was decided that the business needed to be restructured as a result of which the workforce was to be reduced. The respondent used last-in / first-out (LIFO) as the basis of the selection which resulted in the complainant being made redundant.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
Issues for Decision:
The complaint under the Industrial Relations Act 1969 was withdrawn as that box was ticked in error.
I am therefore left with the following matters for decision:
Whether there was a redundancy situation and, if so, whether the complainant was unfairly selected for redundancy.
Whether the complainant was paid all holiday pay due to him.
Legislation involved and requirements of legislation:
Section 6 (4) of the Unfair Dismissals Act states:
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:
(c) the redundancy the employee…
Section 6 (7) of the Act states:
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…
Section 19 (1) of the Organisation of Working Time Act 1997 states:
Subject to the First Schedule….an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-
(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless in a leave year in which he or she changes employment),
(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Decision:
The complainant was employed as a General Operative with a contract cleaning company commencing in September 2005. He was a full-time employee earning €409.50 gross per week. His employment ended on 17th October 2015. is no doubt that the respondent's business suffered a number of setbacks in the period leading up to the redundancy and that it was necessary to address these issues. There was therefore a genuine need to reduce costs and, given the labour intensive nature of the contract cleaning business, this inevitably affects employment. The respondent decided on the redundancy option. In cases such as this, where an employer is making some employee/s redundant while retaining other employee, the selection criteria being used must be applied in an open and objective and fair manner. If agreed procedures exist they should be followed. No evidence of agreed procedures was produced.
These matters were considered by the Employment Appeals Tribunal in UD206/2011. In that case the EAT did not accept that the employer acted reasonably for the following reasons:
- The decision to make the claimant redundant was taken in a hotel on…..(date prior to the employee being informed of redundancy)
- There was no serious or worthwhile consultation with the claimant prior to making her redundant.The consultation should be real and substantial.The decision to make the claimant’s position redundantwas taken before the consultation process commenced..
- No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy.
- There was no worthwhile discussion in relation to the criteria for selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should consider other positions which the claimant is capable of doing.
Many of these faults exist in this case. The decision to make the complainant redundant was taken prior to him being informed of the redundancy. There was no consultation process. The complainant stated in evidence that he had never been informed that a matrix had been drawn up in relation to the three full-time employees. None of the part-time staff were included in the considerations. Moreover there had been no discussion in relation to the complainant working a 3-day week or any other such alternative.
I therefore find that the complainant was unfairly selected for redundancy and that his dismissal was an unfair dismissal under the Unfair Dismissals Act 1977.
In relation to holiday pay evidence was given that the complainant was paid for a total of 16.15 days holidays between April 1 2015 and the termination of his employment on October 17 2015 and this was not disputed. The complainant therefore is not due any further payment in this regard.
I therefore make the following decisions in relation to the complaints before me:
Complaint No. CA-00001385-001:
I find that this complaint under the Organisation of Working Time Act 1997 is not well founded.
Complaint No. CA-00001385-002:
I find that the complainant was unfairly dismissed and that the complaint under the Unfair Dismissal Act 1977 is upheld. I deem compensation to be the appropriate form of redress. I note the evidence of the complainant that he has been endeavouring to obtain employment but has so far been unsuccessful in that regard. I therefore order that the complainant be paid the sum of €20,000 as compensation. For the avoidance of doubt this award is in addition to any sums already received in connection with the termination of employment.
Complaint No. CA-00001385-003:
As stated above this complaint under the Industrial Relations Act 1969 was withdrawn as it was submitted in error.
Dated: 25/07/2016