ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011878
Joan Keena Hussey Fraser Solicitors
Ger Connolly Mason Hayes & Curran
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 10/01/2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing 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 from 1st April 2015 until the employment terminated on 29th September 2017. The Complainant was paid €4587.00 gross per month. The Complainant referred a complaint to the Workplace Relations Commission on 13th November 2017 alleging he had been unfairly dismissed.
Summary of Respondent’s Case:
The Respondent stated that the Complainant had been employed as a Business Development Manager in April 2015. He was provided with a letter of appointment and a Contract of Employment on 6th March 2015.
The Headquarters of the Respondent is in the United Kingdom. It manufactures and sells car products and cleaning material. It sells into the European Union and the Eastern Countries. In April 2015 the Complainant was hired and was the sole employee of the Irish subsidiary. It was loss making in all months with the exception of 5 months since the Complainant’s employment. Evidence of emails in July and August 2017 between the Complainant and the Respondent were provided to the Hearing in relation to the loss making situation of the Company The Respondent made a business decision to make the Complainant redundant and the Respondent gave the rights to the products to a Sole Distributor, who remain in existence and this Sole Distributor was named at the Hearing. The Respondent stated that the Complainant was never replaced and the Sole Distributor remains.
The Complainant was informed of the termination of the employment by email dated 2nd October 2017. The Respondent also in this email offered the Complainant the car as full and final settlement to take account also of any wages due for September 2017, and expenses. There was an outstanding Company Car Loan of €12,555.12 at the time of his redundancy. The Complainant was paid €8044.56.
Summary of Complainant’s Case:
The Complainant was employed from 1sr April 2015 until the employment was terminated on 29th September 2017. He was provided with a written statement of his Terms and Conditions of Employment – copy provided.
On 20th September 2017 the Complainant was requested to attend a meeting with his Supervisor on 29th September 2017. At this meeting he was informed that his services were no longer required. He was requested to hand in his laptop and any other company items immediately. He was advised that his final salary and commission would be offset against his company car loan. On 2nd October 2017 the Complainant received a letter from a named manager of the Respondent dated 28th September 2017. In this letter the Respondent outlined a number of purported reasons as to why his employment was terminated. In his previous annual reviews no issues had been raised with him in relation to his performance. He then received an email from the same Manager on 2nd October 2017 informing him that due to financial circumstances his position was made redundant with immediate effect. And in a follow up email he was informed of the redundancy package. In this email also the Respondent advanced a number of allegations in respect of the Complainant’s work.
On the same day the Complainant was made redundant on 29th September 2017 the Respondent announced it had appointed a Sales Manager for the Republic of Ireland effective from 1st October 2017 – evidence provided.
The Complainant referred his complaint to the WRC on 13th November 2017. However by letter dated 14th December 2017 from the Respondent to the WRC it stated that the employment was terminated for a stated reason and that this constituted gross misconduct. The Respondent has proffered two diametrically opposed explanations for the termination of the Complainant’s employment.
The Complainant argued that he had been summarily dismissed. He had never been provided with the Respondent’s Grievance and Disciplinary Procedures and his dismissal was contrary to fair procedures and natural justice. They outlined case law in support of their arguments.
The Complainant stated that he had been in receipt of Jobseekers Benefit. He was requested to provide a statement from the Department to confirm the dates he had been in receipt of this Benefit. He did not do so. The Complainant also stated that he had commenced work on a Self- Employed basis effective from 14th February 2018. He was asked to provide evidence of this but did not do so.
Findings and Conclusions:
On the basis of the evidence and questioning by the Adjudication Officer at the Hearing I find as follows –
Both Parties confirmed that the Complainant met his named Manager on 29th September 2017 at which he was informed his employment was to be terminated. He was not informed by the Respondent at that meeting the reasons as to why his employment was terminated.
Then on 2nd October 2017 the named Managing Director sent a letter dated 28th September 2017 setting out reasons relating to his performance which the Respondent was now stating was the reason for the termination. However I note in this letter the Managing Director concludes with the following -..you have kindly offered to meet up with the people taking over from 1st October 2017 and do an official handover…
This is followed in an email dated 2nd October 2017 again from the named Managing Director which goes on to state in part as follows - …Unfortunately, due to financial circumstances your position with (named) has been made redundant with immediate effect… - However in a further email of the same date from the Managing Director sets out a redundancy package which offered the Complainant - his car in full and final settlement to take account of any payments for the month of September 2017 for salary, commission and expenses –
However in a letter dated 29th September 2017 the same named Managing Director states as follows – As and from 1st October 2017, I am delighted to inform you that (named) have appointed (named) as Sales Manager for the Republic of Ireland.
The Complainant lodged a complaint with the WRC on 13th November 2017. Then in response to this complaint the Respondent, again in the name of the named Managing Director sent a letter dated 14th December 2017 to the WRC citing a performance failure by the Complainant with a named client as the reason for the termination of the employment. He goes on to cite that this – constitutes as gross misconduct and is subject to instant dismissal.
Thus it is unclear from all these contradictory letters and emails as to why the Complainant’s employment was terminated.
However, regardless of the reason, an employee who is being dismissed by the Employer is entitled to fair procedures in relation to the termination. Both Parties confirmed that the Complainant had been provided with a written statement of Terms and Conditions of Employment but the Complainant had not been provided with the Grievance and Disciplinary Procedures of the Company.
I find that the Complainant was not afforded fair procedures in relation to the Termination in breach of S.I. 146/2000. I refer to a recent Decision of the Court of Appeal in Iarnrod Eireann/Irish Rail and Barry McKelvey IECA 346 in which Ms Justice Irvine stated at Section 85 of the decision as follows – That Code of Practice is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally and is, of course, of particular relevance to disputes in an industrial relations context. It is well understood that the code….was developed so that disciplinary issued could be handled in accordance with the principles of natural justice and fair procedures and in order that good industrial relations might be maintained in the workplace…
I find that the Complainant had been unfairly dismissed.
The Complainant informed the Adjudication Officer at the Hearing that he had been in receipt of jobseekers benefit and that he had commenced work on 14th February 2018 in a self- employed capacity. The Complainant was requested to provide information post the Hearing in relation to both but he failed to do so.
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.
On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) of the Act I declare the complaint of unfair dismissal is well founded. I direct the Respondent to pay the Complainant compensation of €10,000.00 within 42 days of the date of this decision.
Dated: 27th March 2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Unfair Dismissal – multiple reasons advanced by the Respondent for the termination – complaint well founded – compensation of €10,000 awarded.