FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : TOP SECURITY LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - DAN BOLGER (REPRESENTED BY JOHN M FOLEY & CO. SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No: ADJ-000103856 CA-00013776-001.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Act 1967. A Labour Court hearing took place on 20th April, 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Top Security Limited against the Decision of an Adjudication Officer ADJ-000010356 in a claim by Mr Dan Bolger under the Redundancy Payments Acts 1967- 2014 for a statutory redundancy payment. The Adjudication Officer held that Mr Bolger’s claim for statutory redundancy was well-founded.
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Bolger will be referred to as "the Complainant" and Top Security Limited will be referred to as "the Respondent".
The Facts
The Complainant was employed by the Respondent as a Sales Representative from 8thNovember 2010 until 16thDecember 2015. On 27thNovember 2015 the Complainant was advised that his job was at risk of redundancy if it was not possible to accommodate him in an alternative role. On 16thDecember 2015 the Complainant was dismissed for removing customer details from the Respondent’s computer system on 28thNovember 2015. The Respondent deemed this action by the Complainant to be gross misconduct and his dismissal took immediate effect. The Complainant appealed the dismissal decision and his appeal was not successful.
The Complainant referred a claim under the Unfair Dismissals Acts 1977 – 2015 to the Workplace Relations Commission on 23rdFebruary 2016, a hearing was held on 30thNovember 2016 and the Adjudications Officer’s Decision ADJ-00002052 was issued on 8th May 2017. The Adjudication Officer held: -
- "There can be no doubt that any "reasonable "employer in the Security Industry would find the actions qualified as "Gross Misconduct". However, the Company Handbook allows for "other Penalties" in substitution to Dismissal to be imposed. The Penalty imposed by the Respondent was in effect the loss of the Complainant’s Redundancy and Notice Payments (Approximately €9,000). This was a very severe penalty to impose particularly as the potential Redundancy had been clearly
communicated to the Employee at the time of the Dismissal.
Accordingly, having reviewed the evidence and carefully considered the severity of the Penalty imposed find the dismissal unfair.
In redress I order that compensation of three months net pay (£2,420 by 3 = £7,260) but reduced by a factor of 50% (due to the actions of the employee in this case) giving a payment of €3,630 be made to the Complainant. This payment to also include any notice payments that may have arisen.
Reengagement or Reinstatement, following consideration, are not appropriate in this case. "
The Complainant appealed the Decision on the basis of quantum, however, on reflection he withdrew the appeal and did not pursue it. The Respondent did not appeal the Decision and paid the award of compensation to the Complainant.
The Complainant referred his complaint under the Redundancy Payments Acts to the Workplace Relations Commission on 6thSeptember 2017.
Minimum Notice
The Court notes that the appeal of the Adjudication Officer’s Decision to the Court included a claim for a notice payment under the Minimum Notice and Terms of Employment Act, 1973. The Court pointed out that as no such claim was before the Adjudication Officer in the case under appeal, no decision on that issue was made by the Adjudication Officer, consequently, no decision is on appeal to this Court. On that basis the Complainant’s legal representative accepted that that claim was not before the Court.
Summary of the Parties’ Positions
Mr John Foley, John M. Foley & Company, Solicitors, on behalf of the Complainant, submitted that having been notified that he was a candidate for redundancy the Complainant was entitled to a statutory redundancy payment. He submitted that the Court had the right to hear the case and proffered that there was reasonable cause for the delay in submitting the claim for redundancy. He stated that had the allegation of gross misconduct been upheld then the Complainant would not be entitled to receive any redundancy payment as the Respondent could rely on Section 14 of the Redundancy Payments Act to deny him a statutory redundancy payment as his dismissal would have resulted from gross misconduct. Therefore, Mr Foley submitted that until it was established otherwise the Complainant had no standing to pursue a claim for redundancy.
Mr John Barry, Management Support Services (Ireland) Limited, on behalf of the Respondent, submitted that the matter of the Complainant’s termination of employment was dealt with by the Adjudication Officer in the claim taken under the Unfair Dismissals Acts. He said that the Complainant was not in a position to be declared redundant as his employment had come to an end on the date of his dismissal at which point the Complainant had not been declared redundant and no notice of redundancy had been served.
Findings of the Court
The Complainant referred a complaint under the Redundancy Payment Acts to the Workplace Relations Commission on 6thSeptember 2017, almost twenty-two months after his employment had terminated, and almost nineteen months after he referred his claim under the Unfair Dismissals Acts. Both claims related to the termination of his employment by the Respondent on 16thDecember 2015. The Complainant was successful in his unfair dismissal case and, although he was initially at least, dissatisfied with the quantum of the award, however, no appeal was ultimately pursued.
The Court notes that the facts surrounding the termination of the Complainant’s employment were not in dispute between the parties and were as found by the Adjudication Officer in ADJ-00002052. Furthermore, the Court is of the view that the case under appeal concerning the Complainant’s claim for a statutory redundancy payment on the termination of his employment is based on the same set of facts and legal arguments as decided upon in ADJ-00002052 which disposed of his unfair dismissal claim for compensation as a consequence of the termination of his employment. On that basis the Court is of the view that the Complainant cannot now seek to re-open the same facts and legal arguments before this Court again in these proceedings.
InRe Vantive Holdings[2010] 2 I.R. Chief Justice Murray cites with approval the following summary of the rule in Henderson v Henderson: -
- “The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the Court for adjudication and will not afterwards be permitted to re-open the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case.
In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate.
Viewing it through the prism of estoppel and res judicata the rule in Henderson v. Henderson strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings.”
- “all matters and issues arising in the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both Plaintiffs and Defendants, to the courts themselves and thus to the public interest”.
As decided by Hedigan J inIntel, the Court must ensure that process is not abused by fragmenting litigation and relitigating the same set of issues at different times when both sets of proceedings could have been brought to finality in the first instance thereby avoiding unnecessary cost and inconvenience. The Court notes that the Complainant was legally represented at all times. The Court is of the view that the cause of action in the redundancy proceedings was dealt with in the unfair dismissal proceedings by the Decision of the Adjudication Officer in ADJ-00002052 and consequently the Complainant is estopped by that Decision from seeking to relitigate that cause of action again. The Court finds that there are no special circumstances applying in this case that would support a decision to rehear the facts of the case.
Determination
For the reasons set out above the Court allows the Respondent’s appeal in this case and overturns the Adjudication Officer’s Decision.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23 April 2018______________________
THDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.