ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019086
Richard Stapleton Solicitor
Robert Dore Solicitor
Dore & Company
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: 10/06/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 is a service manager. He had worked for the Respondent in the past. His claim was for Unfair Dismissal.
Summary of Respondent’s Case:
The Respondent gave evidence that in 2018 the vehicle servicing part of her business was deteriorating.
She was aware that several errors had occurred in the service department and as a result bills had to be written off. Examples given at the hearing were trucks retained in the service area for multiple weeks when the work to be carried out should only have taken one week. Evidence was also given as to incorrect charge for sales not authorised by her. Some of her customers were complaining directly to her and the Respondent felt that was only the tip of the iceberg.
Any Complaints that she had were ignored by the Complainant.
She confirmed that the Workshop was losing money hand over fist and the appointment of the Complainant to the role of service manager was not working out.
She made a decision that she and two other members of staff would take over the running of the workshop and the duties carried out by the Complainant. His role would be redundant in this restructure of her business.
Her evidence was that the Complainant knew that his position was not working out. A meeting was held one month before the decision to make him redundant took place.
She disputed that the newly created role of business development manager role was a sham. She gave evidence as to different duties and responsibilities that role had compared to service manager role.
The Respondent accepted that no notice of redundancy was given to the Complainant. She submitted that it was a genuine redundancy situation. She gave evidence that since the Complainant’s departure, there was a distinct improvement in performance in the service department.
She agreed that there was no paperwork to back up the decision-making process leading to the determination of the Complainant’s employment.
She submitted she is fully tax compliant about the Complainant’s salary. She explained that the business is a family run business and she didn’t have details of dates or minutes of meetings or correspondence with the Complainant.
She objected to the allegation made that she had a negative intervention about the Complainant’s application for new jobs or interviews. She submitted that there was no reason why she would do that. It was in her best interest in terms of the claim that the Complainant find work sooner rather than later.
Summary of Complainant’s Case:
The Complainant started working for the Respondent as a service manager on the 4th of September 2017. He did not receive a contract of employment. He gave evidence that he did not receive any payslips. There was further dispute between the parties as to what his net pay was but this was outside the remit of this decision.
The Complainant’s evidence was that he raised issues about mismanagement of the business with the Respondent. These were not described as protected disclosures.
In the time leading up to his dismissal, the Complainant felt that his role was being diminished. The partner of the Company Owner/Respondent had commenced directing mechanics to various jobs which would normally form part of his duties.
He was approached by the Respondent on two separate occasions enquiring as to how long he was working for her and his start date. He submitted that these questions were part of an overall decision-making process to terminate his employment and prevent him from having the protection of the Unfair Dismissal’s legislation.
He confirmed that he was invited to at a meeting one month before the termination of his employment. The performance of the workshop was discussed at the meeting. His evidence was that his staff were working as hard as they could but there was a shortage of staff in the workshop in terms of mechanics, fitters and apprentices and that was the reason why the workshop was not performing as well as it should have been.
That was the only meeting he was involved in. He had no further discussion on the matter with the Respondent and he didn’t receive any indication or verbal/written warning that his job was at risk.
On the 23rd of November 2018 at 4.45pm, he was called into the office and was told that the Respondent had to make changes to make her business more profitable. He was advised that the Store Manager had been given three months to improve his sales and that the Sales Department also had been given three months to improve their sales. The Respondent Owner then said to him
“I’m making your position redundant and [a co-worker] was taking over the running of the workshop”.
The Complainant had no input in the meeting. He was not advised that he could appeal the decision to terminate his employment. He was paid for two weeks holidays and given one week’s notice.
The Complainant gave evidence that his position was effectively advertised the following week in a local newspaper. His position was incorporated under the title “business development manager”. No effort was made by the Respondent to inform the Complainant of this position at the time of his alleged dismissal due to redundancy. The Complainant submitted that the redundancy process he was subject to, was a sham.
The Complainant also gave evidence that his application for a job in March 2019 was scuppered by the intervention by the Respondent her servants or agents. The Complainant also believed that the Respondent had taken active steps to frustrate him finding employment locally. The Complainant agreed that this submission was based on hearsay evidence.
The Complainant gave evidence about his efforts to minimise his losses. At the date of the hearing he was in receipt of a social welfare payment. He submitted that while on job seekers benefit, he could work in a self -employed capacity for up to eight hours a week. He gave evidence that he worked this allowance.
The Complainant gave a list of six companies that he applied for or made enquiries with about securing employment. The period on which he did this was the 5th of December 2018 to the 12th of December 2018. He confirmed that he did secure a short period of work.
He gave evidence that he was “out talking to people and checking the local paper”. He said he is registered with Irish Jobs.
He also gave evidence that while mechanics are well sought after, he wasn’t physically able to do that work.
The Complainant disputed that he was working on buying and selling items as a trader on Done deal. He did confirm that he worked on a self-employed basis as a “financial advisor” lending and collecting money.
Findings and Conclusions:
Section 6(6)of the 1977 Act sets out that in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – redundancy is listed), or that there were other substantial reasons justifying the dismissal.
I am also cognizant of the decision in Ponisi v JVC Europe Ltd  E.L.R in which Charleton J warned at paragraph 5 of his judgment: “In an unfair dismissal claim, where the answer is asserting to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. It must result from, as Section 7(2) of the Redundancy Payments Act 1967, as amended, provides, ‘reasons not related to the employee concerned.
‘Redundancy, cannot, therefore, be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy but a dismissal”
I have carefully considered the evidence adduced during the hearing of this matter.
Having reviewed the Complainant’s salary payments, I am satisfied he has locus standi under the Act namely 12 months service.
I found the evidence of the Respondent on why the Complainant’s role was re-structured unconvincing in circumstances where his performance was more at issue for her rather than the impersonal requirements of redundancy set out in the Ponisi case above.
There was no evidence presented of any redundancy procedure and it was clear at the hearing that the Complainant was selected without regard to any procedure or any clear objective or transparent matrix for selection for redundancy.
I accept the Complainant’s argument that he had no prior knowledge of his impending redundancy and he was given no opportunity to have other options looked at. I also note that the Complainant was not offered any appeal against this decision.
Overall, I find that the Respondent failed to act reasonably as she is required. She failed to consult with the Complainant and failed to consider other options.
I do not accept this was a genuine redundancy situation.
In these circumstances I find the Complainant was unfairly selected for redundancy.
I have considered all the submissions from the parties in relation to loss and mitigation and I take into account of the conduct of the parties in accordance with Section 7 in determining the quantum of the award.
I do not accept that the Complainant has fully mitigated his losses. In the 1999 case of Sheehan v Continental Administration Co Ltd (UD858/1999) the EAT stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss “.
The evidence as to the efforts by the Respondent to prevent the Complainant securing replacement employment has been considered by me and I note same to be based on hearsay evidence and was strenuously denied.
Overall, I do not accept that the Complainant has met the standard set out in the Sheehan case above in seeking replacement employment. He did find employment for 4 – 6 weeks and is working in a self-employed capacity for 8 hours per week but in a time where employment is nearly at capacity, to be still on job seekers some 28 weeks after dismissal is not credible. In these circumstances I have applied a reduction to the full value of the Complainant’s claim.
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.
The Complaint is well founded. I award the Complainant €7,500.00 in respect of his Unfair Dismissal. This is taxable in accordance with the Revenue rules on termination of employment.
Dated: 26th September, 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Unfair dismissal. Mitigation of losses.