ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014295
A Shipping Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 27/06/2018
Workplace Relations Commission Adjudication Officer: David Mullis
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2014, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent company from 2006 until 2017. He claims he was dismissed in October 2017 by being forced to write and sign a letter of resignation from the respondent company. His claim, submitted to the WRC is that he did not resign voluntarily and that he should have been paid a redundancy lump sum. He says that other employees had been paid redundancy as the company downsized.
Summary of Complainant’s Case:
The Complainant says he commenced work with the Respondent company on the 4th April 2006 and that he was promoted to the role of operations supervisor in 2008. He says that he served the business very well and was rewarded with substantial wage increases and frequent praise from the Respondent over most of his years of service.
He says that on the 20th October 2017 he reported for work as normal. He says that he was asked by the General Manager to attend a meeting in the latter’s office at 11.00am. He was asked how things were going and he responded that all was going well with no problems. He says that at that point the General Manager banged his fist on the table and shouted that the Complainant was a “liar”. He says that he was put under pressure to sign a letter of resignation or be dismissed.
He said that he always attended work and serviced the customers.
He says that the day before the resignation/dismissal on the 20th October 2017, he received an email regarding the loading/unloading of a particular container about which there were significant problems. He said he had no one to go to to discuss these difficulties and that this led on to him writing his resignation under duress.
He says that the company had been declining in terms of clients and therefore income over a number of years and that during this downturn employees had been made redundant and paid their redundancy entitlements.
Summary of Respondent’s Case:
The Respondent says that the Complainant was from the 4th April 2006 to the 20th 0ctober 2017. The company is a transport and haulage company.
In mid-2014 the Complainant had sought a pay increase of €10,000 and this was granted by way of an increase of €5,000 pa from July 2015with a further increase of €3,000 pa from January 2016.
They say the Complainants performance was satisfactory up to 2015 when the Respondent met with the Complainant to discuss specific issues in his performance.
They say that the Complainant failed to satisfactorily address these performance issues. As a result the Respondent issued the Claimant with a Verbal warning, committed to writing, on the 7th December 2015.
They say that there were further meetings that discussed further the Complainant’s performance and that on the 4th July 2017 there was a further meeting to discuss further specific performance issues on the Complainants part. This resulted in a written warning.
As the performance of the Complainant did not improve to the standard required, a further meeting took place between the parties. This resulted in a second written warning being issued to the Complainant on the 21st July 2017.
They say that the Complainant’s performance did not then improve.
On the 19th October a complaint was received by the Respondent, from a client, with respect to the performance of the Complainant.
A further meeting was arranged for the following day at which the Respondent says the Complainant arrived with his resignation already written. They said that they did not coerce the Complainant in any way to do this.
They say that the turnover of the business declined from an annual turnover of €5 million to €1.8 million and that corrections made had the turnover now at €2.2 million.
They say that one of the contracts the company lost was due to a choice of haulier the Complainant made, even though, they say, he was under strict instructions not to use the haulier concerned. The loss to the Respondent company was €250,000.
There were further examples of poor performance, arising from which, the Complainant received, as cited above. The Complainant does not seem to have challenged these warnings or processed them through the Grievance procedure.
The final meeting on the 20th October 2017 raised further issues of poor performance on the part of the Complainant. This called for the checking, early morning of goods inward and shipped where the Complainant was at fault in not checking as he was instructed to resulting in serious issues with the shipping company on the continent.
They say that there was nothing to do following the Complainant’s resignation but to hire a replacement, which they did.
They say that redundancy is not appropriate because the role was not made redundant and that the Complainant has been replaced in that role.
Findings and Conclusions:
The Complainant’s claim for Redundancy Payment under Section 39 of the Redundancy Payments Act, 1967 is considered under S.7(2) Redundancy Payments Act, 1967, wherein it states that a person is dismissed by reason of redundancy where the dismissal results “wholly or mainly” from either:
(a)the fact that the employer has ceased or intends to cease to carry on the business for the purpose 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
(b)the fact that the requirements of the business for employees to carry out work of a particular kind in the place where he was employed have ceased or diminished or are expected to cease or diminish, or
(c)The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or
(d)the fact that his employer has decided that the work for which the employee had been employed(or had been before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained, or
(e)the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.
The Respondent makes the case that the business continues as was in the same location. The same core function that the Complainant worked in continues, the same number of employees are employed, the work done by the complainant continues to be performed, though by another person with the same skill set.
In these circumstances it is clear that the redundancy claimed was not appropriate.
This was the only Employment Rights Legislation under which there was a claim submitted.
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.
[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Based on the evidence submitted I find that the claim fails.
Workplace Relations Commission Adjudication Officer: David Mullis