ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007932
Parties:
| Complainant | Respondent |
Anonymised Parties | A Factory Manager | A Restaurant |
Complaints:
Act | Complaints Reference Nos. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00010604-001 | 03/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010604-002 | 03/04/2017 |
Date of Adjudication Hearing: 27/11/2017
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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.
Background:
The complainant was employed by the respondent since 11th November 1995. His job title is described as Factory Manager although it is accepted by the parties that the complainant undertook a number of roles within the organisation. The complainant’s employment ceased on the 14th April 2017. His gross annual salary was €21,846.24 |
Preliminary Point 1 -Timing of complaint
Summary of Respondent’s Case:
The respondent raised a preliminary issue that the complainant had lodged his complaint to the Workplace Relations Commission in advance of his dismissal taking place. The respondent cited the case of Millett v Shinkwin [2004] ELR 319 where it stated the Labour Court held that a resignation was “a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.” The respondent stated that the date of termination elected by the complainant was 14th April 2017. The respondent’s position is that the complainant lodged a speculative claim for constructive dismissal on 4th April 2017 which predated the actual date of the dismissal. The respondent also cited the case of Caragh Neeson v John O’Rourke UD2049/2011 in support of its position where the respondent contends that the EAT found that Section 8(2) of the 1993 Act “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date”. |
Summary of Complainant’s Case:
The complainant contends that the complaint was lodged to the Workplace Relations Commission (WRC) on 4th April 2017. Although the letter of resignation was submitted in advance of the date of dismissal elected by the complainant, the effect of this was that on the date of the dismissal, the WRC was already on notice of the complaint. The complainant cited the High Court decision of Brady v EAT [2015] E.L.R.1 which stated that: “prescribed time periods are typically intended to thwart the tardy, not punish the prompt.” The High Court also stated that: “giving notice to the Tribunal on one date such that it has notice on another date, is within the scope of the legislation.” The complainant noted that the High Court in Brady referred to the EAT case of Matthews v Sandisk International Limited UD331/2010 which stated as follows: “The Tribunal holds that the filing of a notice in writing with the Tribunal prior to the date of termination of employment and therefore prior to the period of six months beginning on the date of dismissal but not withdrawn prior to the date of termination of employment constitutes the giving of notice in compliance with Section 8 of the Unfair Dismissals Acts. The Tribunal finds that by leaving the form T1A with the secretariat to the Tribunal prior to the commencement of the statutory period the form was with the secretariat at the commencement of the statutory period and throughout that period. Therefore, the claimant had given notice within the statutory period as well as for an additional period.” The complainant contends that in line with the decision of the High Court in Brady and the EAT in Matthews v Sandisk International Limited that the complaint as submitted is properly before the WRC for adjudication. |
Findings and Conclusions:
The parties to the within claims made additional submissions on the preliminary points after the adjudication hearing, the most recent date of the receipt of submissions being the 15th February 2018. In relation to this preliminary point I find as follows: The complainant in this case did not attend work after 8th February 2017. He submitted a formal complaint in relation to tasks he had been asked to perform and sought his redundancy entitlements as he believed he was entitled to do. The complainant subsequently wrote to the respondent on 30th March 2017 effectively resigning from his employment on the basis that his complaint had not been adequately dealt with. I note that the complainant’s contract of employment requires that the employee give two weeks’ notice of termination which the complainant did. I find that the complainant had already left the employment at that point and was complying with the contractual requirement to provide two weeks’ notice to the respondent. The respondent claims that as the complaint was lodged to the WRC on 4th April 2017, which was before the expiry of the notice period, the complaint is premature and no jurisdiction exists for an Adjudication Officer to hear the complaint. I note that in Redmond on Dismissal Law, Third Edition, 22.78 page 511, Dr D Ryan refers to the High Court decision in Brady where the Court stated that: “it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period.” The High Court also stated in Brady that: “giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts.” |
Decision:
Having considered the submissions of both parties on this issue and having reviewed the relevant legal precedents, I am satisfied that the complaint is properly before the Adjudication Services of the WRC and that I have jurisdiction to adjudicate on the substantive complaints submitted. |
Preliminary Point 2 – Election of claim
Summary of Respondent’s Case:
The respondent contends that the complainant is making contradictory claims to the WRC insofar as the complainant is claiming that he was unfairly dismissed by way of constructive dismissal and that he was fairly dismissed by reason of redundancy. The respondent stated that the complainant could not maintain both claims at adjudication and should elect, prior to the adjudication hearing, under which piece of legislation he wishes to proceed. |
Summary of Complainant’s Case:
The complainant contends that there is no statutory bar for maintaining both claims at adjudication. The complainant accepts that both claims cannot succeed but can be heard in line with the relevant legislation and separate decisions issued on each complaint. |
Findings and Conclusions:
On this preliminary point I find as follows: The complaints relate to a situation where the complainant alleges that he was constructively dismissed and is seeking redress under the Unfair Dismissals Acts 1977-2015. If it is found that he was not constructively dismissed but was dismissed by reason of redundancy, he is entitled to receive his statutory redundancy entitlements once he has satisfied the necessary qualification criteria. I accept the point made by the complainant that there is no statutory bar to bringing complaints under both the Unfair Dismissal Acts and the Redundancy Payments Acts. The complainant has accepted that both claims cannot succeed but can be heard at adjudication and have separate decisions issued in respect of each complaint. |
Decision:
Having considered the submissions of both parties to these complaints, I am satisfied that both complaints can be heard with each case being decided individually. |
CA-00010604-001 Redundancy complaint.
Summary of Complainant’s Case:
The complainant contends that his contractual position of Factory Manager became redundant in January 2017 when the factory which was his contractual place of work ceased its operations. The complainant wrote to the Respondent on the 9th February 2017 seeking that he be provided with his redundancy entitlements within 14 days. The complainant contends that he stated in his correspondence to the Respondent that he remained available to carry out duties appropriate to his job description and at his normal place of work. The complainant’s position is that he was entitled to terminate his employment by virtue of Section 9(1)(c) of the Redundancy Payments Act, 1967-2014 in circumstances where his contractual position no longer existed yet he was not provided with work that came within his role and duties and that the grievances that he raised were not addressed. The complainant also stated that he did not receive adequate training for the tasks he was asked to perform and the tasks in question were for the personal benefit of a director of the respondent. The complainant’s position is that the actions of the respondent amounted to a repudiation of his contract which entitled him to consider himself dismissed in line with the Redundancy Payments Act of 1967. |
Summary of Respondent’s Case:
The respondent’s position is that the complainant’s role within the Company was not redundant. The respondent contends that while the complainant’s title was that of Factory Manager, the realities of the business was that the complainant undertook a number of tasks throughout his employment and at numerous different locations. The respondent further contends that the complainant was the “right hand man” of his employer given that he had been in the employment continuously for well in excess of twenty years and was a trusted and well regarded member of staff. The respondent stated that there were many alternative roles that the complainant undertook following the closure of the factory and that he did so without complaint or without raising any internal grievances at the time. The respondent stated that a redundancy situation did not arise as is evidenced by the fact that other staff members continued to carry out the complainant’s tasks after he left the employment. |
Findings and Conclusions:
In relation to this complaint I find as follows: The complainant was employed continuously by the owner of the Respondent for in excess of twenty years. The complainant was a trusted member of staff and was obviously a close confidante of his employer. The respondent owner stated that the complainant had collected her child from school on occasion, had a set of keys to her home and was also named in her will. I find that the parties to this case were obviously close and had worked together without issue for a very long time. I find that there were many different elements of the respondent’s business and the complainant, as the employer’s right hand man, undertook many different tasks across all areas of the Respondent’s business at several locations for many years. I find that after one of the respondent’s restaurants closed in December 2016, and the subsequent closure of the respondent’s factory in January 2017, some staff were made redundant but others were not. I accept the respondent’s position that the complainant was told that his role within the organisation was not redundant and that his job was safe. I find that the complainant accepted this and continued in his work across the different locations of the Respondent’s business. Redundancy Payments Act 1967 Section 7 of the Redundancy Payments Act, 1967 sets out general entitlements to redundancy payments as follows: 7.(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided— (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date. (2) 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 Section 9 of the Redundancy Payments Act 1967 sets out the provisions relating to the dismissal of an employee as follows: 9(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if— (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or
(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or 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), that term expires or that purpose ceases without being renewed under the same or similar contract, or (c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer’s conduct. Section 15 of the Redundancy Payments Act, 1967 sets out the provisions relating to disentitlement to redundancy payments as follows: 15.(1) An employee shall not be entitled to a redundancy payment if (a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract (c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and (d) he has unreasonably refused the offer. (2) An employee shall not be entitled to a redundancy payment if (a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract, (c) the offer constitutes an offer of suitable employment in relation to the employee, (d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and (e) he has unreasonably refused the offer. It is clear from the hearing of this matter that the respondent confirmed to the complainant that his position in the organisation was safe and that he was not being made redundant. The respondent did not provide a written offer of alternative employment to the complainant. However, the complainant accepted that he was not being made redundant, appeared to be satisfied with the situation and continued in his role for a number of weeks. Accordingly, I find that the complainant’s role, as carried out for a number of years, did not become redundant and that this was accepted by the complainant at the time. In addition, I do not find that the conduct of the employer was such that the complainant was entitled to terminate his employment and to consider himself dismissed by virtue of Section 9(1)(c) of the Redundancy Payments Act, 1967. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Having considered the verbal and written submissions of the parties and all of the evidence adduced at the hearing of this complaint, I do not find that a redundancy situation arose and accordingly I declare that the complaint is not well founded. |
CA-00010604-002 Constructive Unfair Dismissal complaint.
Summary of Complainant’s Case:
The complainant contends that he had no option but to leave his employment due to the way that he was treated by the respondent. The complainant stated that although his contract of employment states that he is a Factory Manager, he carried out several different tasks over many years for the respondent. The complainant’s position is that the respondent instructed him to carry out tasks that he was not trained for and that did not come within the terms of his contract of employment. The complainant contends that in December 2016 a restaurant of the respondent closed yet he did not receive his redundancy entitlements and in January 2017, a factory of the respondent closed and again he did not receive his redundancy entitlements. The complainant contends that instead of paying him redundancy, the respondent kept him in employment and began to instruct him to undertake tasks that were inappropriate to his position and that he was not trained for. Specifically, the complainant contends that he was instructed to carry out the following tasks between January and February 2017: To remove fixtures and fittings such as shelves, kitchen sinks and curtain poles from premises and to take certain items to auction. To follow tenants of the Respondent owner from one location to another and to report back as to where the tenants had moved to. To carry out manual labour such as the “knocking out” an old kitchen and other labouring duties. On 8th February 2017, the complainant states he was instructed to attend a house owned by the respondent owner and to remove tiles from a kitchen wall. The complainant stated that he was not provided with any training or safety equipment to carry out the task. The complainant contends that he received multiple cuts and abrasions as a result. On the 9th February 2017, the complainant submitted a grievance to the respondent in relation to the tasks being assigned to him on a daily basis. The complainant sought his redundancy entitlements on the basis that his contractual position no longer existed within the organisation. The complainant contends that the respondent failed to address his grievance and that he was left with no alternative but to resign his position in the organisation. The complainant contends that he submitted his letter of resignation on 30th March 2017 providing two weeks’ notice of his resignation date. The complainant’s position is that he was constructively dismissed from his employment in circumstances where his grievances were not addressed and his redundancy entitlements were not acknowledged by the respondent. |
Summary of Respondent’s Case:
The respondent’s position is that the complainant was not dismissed and remained in the employment throughout December 2016 and January 2017. The complainant had been assured that he was not being made redundant and that his job in the organisation was safe. The respondent contends that the complainant remained in its employment and carried out the tasks requested of him until 8th February 2017 and did not raise any issues in relation to the suitability of the tasks. The respondent stated that the complainant had been requested to carry out certain tasks and was told there were other staff who could assist if necessary. The respondent stated that the complainant had health issues and it was conscious of his welfare in relation to the tasks he undertook. The Respondent contends that following the alleged injury, the complainant submitted a medical certificate which covered his absence from 10th February 2017 until 2nd March 2017. The respondent stated that the complainant did not submit any further medical certificates. The respondent stated that it subsequently received a letter from the complainant’s solicitor on 10th March 2017 seeking clarification as to when the grievance would be investigated in line with the provisions of the employee handbook. The respondent stated that it then wrote to the complainant on 28th March 2017 seeking to arrange an appointment for him to attend an Occupational Health Physician and to arrange possible “next steps”. The respondent stated that the complainant then submitted his resignation letter on 30th March 2017. |
Findings and Conclusions:
In relation to this complaint I find as follows: The complainant was employed by the Respondent since 1995 and his contractual position was that of Factory Manager. Having considered the evidence of the parties to this complaint, it appears that the reality of the complainant’s role on a day to day basis was that he carried out a number of tasks across multiple locations over several years. The complainant’s evidence was that although he was unhappy on occasion, he never refused when asked to carry out a task and had never previously raised any grievances in relation to his employment. The events leading up to the alleged constructive unfair dismissal occurred on 8th February 2017 when the complainant stated that he suffered an injury while carrying out a task at the request of his employer. The complainant subsequently submitted a formal complaint on the issue on 9th February 2017. The complainant stated that the tasks were not part of his contractual role and that he had not received adequate training in relation to them. The parties then engaged in further correspondence on the issue. The Respondent wrote a number of letters to the complainant in relation to his absence, the fact that no further medical certificates had been submitted beyond the 2nd March 2017 and inviting him to attend an informal welfare meeting. The complainant’s representative then wrote to the respondent on 10th March 2017 seeking an investigation into the complainant’s grievance within 14 days or the matter would be referred to the Workplace Relations Commission (WRC). The Respondent then wrote to the complainant on 28th March 2017 inviting him to attend an appointment with an occupational health physician which would then allow for “possible next steps.” The complainant then wrote to the respondent on the 30th March 2017 resigning from his employment. The complainant gave two weeks’ notice of his resignation. The Law: Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:
“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”. The burden of proof rests with the Complainant in this case.
There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.
In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”
Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:
“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
The requirement to substantially utilise internal procedures is also an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:
“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”
In the instant case, I do not find that the respondent acted in such a way that resulted in the complainant having no other option but to resign from his employment. I find that the respondent made numerous efforts to engage with the complainant in relation to his absence and the issues raised in his letter of complaint dated 9th February 2017. I find that the complainant did not engage in any meaningful way with the respondent in relation to resolving the grievances that he had raised. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the constructive unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having considered the written and oral submissions of both parties to this complaint and all of the evidence adduced at the adjudication hearing, I declare that the compliant of constructive unfair dismissal is not well founded. |
Dated: 09 April 2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Constructive dismissal, redundancy |