ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005935
Sean Ormonde & Co. Solicitors
John Barry Management Support Services (Ireland) Ltd
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 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 09/01/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,andfollowing 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 was employed with the Respondent from 29th May 2013 until the employment was terminated on 3rd June 2016. The Complainant was paid €32,000 per annum. The Complainant referred two complaints to the Workplace Relations Commission on 17th November 2016 alleging he had been unfairly dismissed by the Respondent and that he had not been provided with a written statement of his Terms and Conditions of Employment in breach of the Terms of Employment (Information) Act, 1994 – 2015.
Summary of Respondent’s Case:
Terms of Employment (Information) Act, 1994 – 2015. The Complainant was employed by the Respondent on 29th May 2013 as Production Manager. He was provided with a written statement of his Terms and Conditions of Employment signed and dated by the Respondent on 29th May 2013 – copy provided to the Hearing. The Complainant did not sign the statement. In 2015 the Complainant was moved to Projects and Sales as Project Manager. The Complainant accepted this position and he received an increase in his salary, the use of a company vehicle, mobile phone and company laptop. The Respondent stated that during the course of a meeting in relation to his position in the Company held on 16th May 2016 the Complainant did raise an issue and stated that during his three years with the Company he never received a statement of Terms and Conditions of Employment. However subsequent to this meeting the Complainant did confirm that he had in fact received the statement dated 29th May 2013 from a named Manager in February 2014. He had refused to sign this as his wages had increased in the meantime. The Respondent also confirmed to the Complainant that he had not been issued with a new contract when his role changed in March 2015.
Unfair Dismissals Act, 1977 – 2015. Up to 2016 the MD of the Company had been involved in developing the business and setting up a base in the middle east. This was achieved and the MD then sought to concentrate on building up the business in Ireland. There followed a review of staff structures as a result of the MD now concentrating on Ireland. Following this review of the structures it was decided that the MD would take over the duties of the Complainant thereby putting his position at risk of redundancy. They sought to ascertain if there was another position in the Company for the Complainant and the Operations Manager and the General Manager met with the Complainant on 9th May 2016 where he was advised that a restructuring was taking place and that his position was under threat of being declared redundant but that the Respondent was seeking alternative position and sought his views on what position he thought he could fulfil in the Company. A further meeting was arranged for 12th May 2016 at 4pm. This was to afford the Complainant an opportunity to return with any questions comments, ideas, suggestions or options that he may wish to be considered by the Company. During the course of this meeting the Complainant was asked if he had considered any alternative roles that he would regard as suitable for him and the Complainant’s response was that it was not his responsibility to do this but rather the role of the Company. The Complainant was informed that they had conducted a review concerning alternative suitable roles but there were no other comparative roles within the Company and they also confirmed that his previous position as Production Manager had been now incorporated into the function of the Operations Manager. The Complainant sought information concerning his redundancy entitlements and he was advised the Respondent would meet him on 16th May 2016 to provide him with this information.
A further meeting took place with the Complainant on 16th May 2016 where he was informed the Respondent had made a decision to declare the position redundant and this was confirmed by letter The details of his redundancy entitlements were made available to him including his entitlement to payment of two weeks’ notice. The Complainant remained with the Respondent until 26th May 2016.
The Respondent argued that the Complainant had received two pay increases of €2000.00 each time during the course of the employment in an 18 month period and that he had received a promotion, new employment with a €4000.00 pay increase with a company vehicle, mobile phone and laptop. The Respondent also assisted him in securing alternative employment which he commenced in October 2016.
Summary of Complainant’s Case:
Terms of Employment (Information) Act, 1994 – 2015. The Complainant stated that the Respondent failed to furnish the Complainant with a written statement of his terms and conditions within the period of two months of the commencement of his employment in May 2013. The Respondent failed to provide the Complainant with a new and updated written terms of employment despite several changes of position and salary increases.
Unfair Dismissals Act, 1977 – 2015 The Complainant commenced employment with the Respondent on 29th May 2013 as Production Manager. He also served in other positions as Sales Manager and Project Manager. The Complainant outlined the duties attached to the different positions. In January 2014 he received a salary increase of €2000.00 to €26,000 and in February 2014 he was given a draft contract of employment to sign but noted the incorrect salary was on it and refused to sign but did inform the Respondent. He received a further salary increase to €28,000 in November 2014. By email dated 19th January 2015 the Complainant sought a salary increase to €40,000. Agreement was reached to pay him €32,000 with a company van, phone and laptop.
The Complainant met with a named Manager on 20th February 2015 at which it was suggested he become the Sales Manager for the Irish market but that his title would be Project Manager. The Complainant responded by email on 23rd February 2015 stating the position was more appropriate to Sales Manager rather than Project Manager. The Complainant asserted that this disagreement precipitated a breakdown in the relationship with the Respondent. Agreement could not be reached between the Parties despite several meetings. The Complainant was forwarded a list of his duties by email dated 18th March 2015. The Complainant asserts he was referred to as Sales Manager as a large meeting on 19th November 2015 where he gave the sales presentation for his designated area and was introduced as Sales Manager.
The Complainant was requested to attend a meeting on 23rd December 2015 with a named Manager where the Respondent asserted he was to be called Project Manager and there was to be no further discussion on the matter. He was requested to prepare a weekly sales diary of customers contacted and projects discussed.
A named Manager returned permanently to work in the Irish Office and he shared an office with the Complainant. He wrote to the Complainant on 14th April 2016 berating him for underperformance and also informing him he was considering a complete change in strategy for the Irish Market. The Respondent never instituted any disciplinary sanctions on his performance. The Complainant sent an email dated 25th April 2016 to a customer but accidently forgot to delete some information. He was rebuked for this and there was an exchange of emails between the Complainant and the named MD.
He was requested to attend a meeting on 9th May 2016 with two named Managers at which he was informed his position might be made redundant as the MD had now returned to the Irish market on a permanent basis and that he would be assuming the Complainant’s role with his own. He had not been informed in advance of the nature of this meeting nor was he afforded a right of representation. The Complainant also asserted that no objective report, matrix or criteria were offered by the Respondent to explain this. There was no formal documentation presented to him and there was no appeal mechanism provided. There followed an exchange of emails between the Parties. He was due to attend a further meeting on 16th May 2016 but in fact the Respondent had already arrived at a final decision on 13th May 2016.
He was informed that his position was to be made redundant but he was not afforded a right of appeal of this decision. His employment terminated on 3rd June 2016. He received his statutory redundancy entitlement of €4,224.00. He rejected an ex-gratia sum of €1500.00 as he refused to sign a severance agreement.
The Complainant confirmed he had been in receipt of Jobseekers Benefit from June to 19th October 2016 when he commenced employment earning €35,000 per annum. This was confirmed by the Department of Social Protection. The Complainant is seeking compensation.
Findings and Conclusions:
On the basis of the evidence and substantial submissions, including supporting documentation, from both Parties I find as follows –
Terms of Employment (Information) Act, 1994 – 2015. The complaint submitted to the WRC states that the Complainant during the course of his employment was never provided with a written statement of his Terms and Conditions of Employment. However, in its submission to the Hearing the Complainant confirmed he had received a written statement dated 29th May 2013, in February 2014. The Respondent provided a copy of this Statement to the Hearing which shows that it was signed and dated by the Respondent on 29th May 2013. The Complainant disputes that he received this statement prior to February 2014. The Respondent states that this was provided in September 2013 and they also confirmed that while the Complainant’s salary and position within the Company did change he was never provided with a written statement of the changes as required by Section 5 of the Act. However, there was no complaint submitted to the WRC concerning a breach of Section 5 of the Act. Therefore, I do not have jurisdiction to deal with this aspect of the complaint.
Section 3 (4) of the Act provides that a statement shall be furnished to an employee within the period of two months of the commencement and that this statement shall be signed and dated by the Respondent. I accept the evidence presented to me at the Hearing where a signed and dated statement of 29th May 2013 was held by the Respondent as required by Section 3 (5) of the Act.
Unfair Dismissals Act, 1977 – 2015.
I note that the Complainant was promoted to Project Manager in 2015, a role that involved Sales and Projects. He received a salary increase plus a company car, mobile phone and laptop. While the Complainant did dispute the title of his new job, he did accept the position and the increase in salary with it. Following a restructuring of the Company in 2016 , following the return of the Managing Director to Ireland to concentrate on developing the irish market, the Complainant’s position was declared redundant as it had been taken over by the MD into his role.
I note that the Operations Manager and General Manager met with the Complainant on 9th May 2016 at which he was informed of the proposed restructuring and that his position was under threat of redundancy. He was advised that all options were being considered in relation to him to seek to eliminate this threat of redundancy. The Respondent also requested the Complainant to seek to identify any alternative roles within the Company he may be able to fill. The Complainant responded at a follow up meeting on 12th May 2016 that it was not his responsibility to identify alternative roles. The Respondent informed the Complainant that following their own review they were unable to identify any other comparable role within the Company. At this meeting the Complainant sought information in relation to his redundancy entitlements and a further meeting was arranged for 16th May 2016 to provide him with this information.
A meeting took place on 16th May 20216 with the Complainant during which he was informed of the Respondent’s position to make his position redundant as it had been subsumed into the functions of the MD. He was also informed of his redundancy entitlements. The Complainant worked with the Company up to 26th May 2016 and was paid in lieu of notice. His termination date was confirmed as 3rd June 2016.
Section 6(3) of the Unfair Dismissals Act provides that a dismissal due to redundancy is deemed to be an unfair dismissal if the Complainant has been unfairly selected for redundancy. It provides as follows – “Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed and either – (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union……..and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal”. Two things must firstly be established – first that the circumstances constituting the redundancy applied equally to one or more other employees and second that the selection for redundancy was for reasons set out at subsection (2) of the Act or in the alternative was in contravention of an agreed procedure in relation to redundancies within the Respondent Company. The facts of this complaint are that the Complainant was the only person made redundant at that time and that there were no agreed procedures in place in the Company in relation to selection for redundancy. Neither was there any evidence presented by the Complainant that he was selected for redundancy by reason of subsection 2 of the Act which sets out that if an employee is selected for redundancy on any of the grounds listed e.g. trade union membership age, race colour etc.
There was no dispute between the Parties that the Complainant’s position was subsumed into the role and function of the Managing Director who had returned to develop the business in Ireland.
Section 41 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.
Terms of Employment (Information) Act, 1994 – 2015.CA-00008234-002
On the basis of the evidence and my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.
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.
Unfair Dismissals Act, 1977 – 2015 CA-00008234-001
In accordance with Section 8 (1)(c) of the Act and in view of my findings above I declare this complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Terms of Employment – evidence was the Complainant had been provided with a statement signed and dated by the Respondent.
Unfair Dismissal, Redundancy – Section 6(2) of the Act does not apply – not well founded.