ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00028766
Sherry Garden Rooms Limited
Ken Stafford Management Consultancy Services
Michael McCormack BL instructed by Feran & Company solicitors
Complaint 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 12 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 21/05/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 25th June 2020, the complainant referred complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act, the Terms of Employment (Information) Act and the Minimum Notice & Terms of Employment Act.
The complaints were scheduled for adjudication on the 21st May 2021. The complainant attended the adjudication and was represented by Ken Stafford. The respondent Managing Director attended for the respondent, which was represented by Michael McCormack BL instructed by Caitriona McMahon, Feran & Co solicitors.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 started working for the respondent in 2015 and his employment came to an end in either May or June 2020 (the date is disputed). The complainant outlined that he was paid €1,961.54 per fortnight and this was disputed by the respondent. The complainant asserts that he was unfairly dismissed, and the respondent asserts that the complainant was made redundant. The complainant asserts the right to notice, which the respondent asserts he waived. There is a Terms of Employment (Information) claim, also disputed.
Summary of Respondent’s Case:
The respondent outlined that this was a genuine redundancy following a restructuring of the company. It was submitted that a more detailed consultation would not have changed the outcome. Even if a finding was made that the complainant was unfairly dismissed, the complainant has not suffered financial loss because he was on the Pandemic Unemployment Payment and on lay-off. The complainant would have stayed on this had he remained an employee. The respondent submitted that the Terms of Employment (Information) claim was out of time and if made out, represented a minor breach. It was submitted that the complainant had waived his entitlement to minimum notice.
Evidence of the Managing Director
The Managing Director outlined that the complainant started in 2015. The complainant did not have a sales background so started in a part-time capacity to see if he could do a sales role. The complainant performed well so started the role in September 2015. The complainant did sales and project management, where he explored leads.
The Managing Director said that he spoke with the complainant about the terms of his employment, and they had a ‘gentleman’s agreement’. The complainant was not initially provided with a written contract. The Managing Director said that he gave the complainant a contract in September 2016, backdated to March 2016. The complainant came back with one signed copy and would have kept a second one.
The Managing Director outlined that the complainant was very honest, and they had a good working relationship. He did not accept that he was ill disposed to the complainant and signed the reference for him. The Managing Director had sought to nurture the complainant’s sales skills. There were some performance concerns in 2017 and 2018, for example communication with customers, contractors and suppliers. The Managing Director cited the example of over promising customers. The Managing Director said that they had chats in March and November 2019, leading to the ‘informal warning’ in November 2019, which was documented. The Managing Director said that there was a great improvement after the warning, and he communicated this to the complainant in December 2019. The complainant had earned the 2019 bonus and it was paid to him in 2020 to cover any shortcomings during the lay-off.
The Managing Director said that in 2016, there was a Project Manager and a Showroom Manager as well as the complainant. By 2019, the complainant was the only Sales and Project Manager, and he was on the road a lot. The complainant was not involved in the strategic or financial side of the respondent. He also did not construct garden rooms.
When the pandemic hit, the Managing Director said that employees were placed on lay-off in March 2020. He started doing remote site surveys. They had new customers who were executives who had to work from home or couples who were home working. Referring to his message to the complainant of the 17th March 2020, he had not mentioned redundancy as he thought that this was short-term. The lay-off, however, was extended. The Managing Director referred to the emails he exchanged with the respondent during lay-off. He said that he was doing the sales at this stage. There was no work available. The higher TWSS payment was only available to the complainant if he was working. He outlined that their accountant had given advice in March 2020 which they implemented in May 2020.
The Managing Director said that he was doing 10-hour days and carrying out 30 estimates. They only had one sale in April 2020, reducing the profit line. Business was static between March and May 2020 as people were waiting to see. Things got better in June 2020. The respondent decided to restructure. They had four staff. A part-time sales assistant was going on maternity leave. They had one other part-time sales role, a painter and the complainant, who was full-time.
In respect of consultation, the Managing Director said that the complainant was the only project manager. He had considered whether the complainant could do the painting role. They also discussed the complainant doing an administrative role, but this was a more junior role. The Managing Director said that he did not have a conversation with the complainant about these other roles but did consider these other roles for him. He referred to the emails regarding the issue of notice and having to restore the complainant to pay roll, affecting his entitlement to PUP.
The Managing Director outlined that they had stepped back the complainant’s start date so that he kept his PUP, and this accounted for his notice period. The complainant had not raised any issue about not going back on pay roll.
The Managing Director said that the redundancy was based on the restructuring of the business and not on the warning previously given to the complainant. The respondent was then in crisis and the business had changed completely. The business was suffering so they had to make changes to keep the business afloat. The complainant would have remained on lay-off if he had not been made redundant because of the uncertainty of the market.
In respect of the post advertised on Facebook, the Managing Director said that this was put up at the end of June 2020. There had been a run of sales at the beginning of June and there was an over-run. They then had two part-time contractors and the part-time salesperson. The Managing Director said that he paused the business for one month as he could not cope. In respect of the Irish Times article, the Managing Director said that this talked up the business and they had not made these sales.
In respect of the job advertisements, the Managing Director said that one was for a junior administrative role, and they also advertised two other roles. No-one was employed until September 2020. The respondent engaged a change manager to help with the business. The change manager was engaged on a four-month contract from July 2020. The change manager gave advice, for example to hire a full-time showroom manager, which was an administrative and not a sales role. It was more junior to what the complainant had been doing. The Managing Director said that he was looking for someone with good communication skills and who had attention to detail, not things in the complainant’s skill set. The Managing Director said that more consultation would not have changed the position.
In cross-examination, it was put to the Managing Director that the complainant was not costing the business anything as he was on lay-off. In respect of the contract, the Managing Director said that he had the contract signed by both him and the complainant, while the complainant had the copy that only he signed. The Managing Director said that, in December 2019, he had told the complainant verbally and not in writing about the massive improvement. The Managing Director was asked why the complainant’s redundancy was such an urgency; he replied that it was necessary to restructure the business and that, for example, the Leaving Cert was cancelled on the 8th May 2020. The Managing Director accepted that he had not consulted directly with the complainant about the alternatives.
Referring to information provided by Revenue, the Managing Director said that the complainant’s actual start date was the 7 September 2015. The Managing Director said that the showroom did not really open until August 2020, and this was by appointment. There was demand for garden rooms and he lost staff who returned to their native country for part of the lockdown.
In closing, the respondent outlined that the complainant had commenced in September 2015 as the initial periods were unpaid trials. It was submitted that the complainant had waived his right to notice pay. The complainant was entitled to waive this, and he did so. It was submitted that consultation would not have affected the outcome, and this was also what the respondent thought. It was submitted that the Terms of Employment (Information) claim is out of time and that any breach was de minimis.
In submissions, the respondent outlined that the complainant was on a lower salary than he had stated. It was submitted that loss must be assessed net and that the notice period had been doubly counted. The complainant had not suffered loss as the 1993 amendment to the Unfair Dismissals Act was not applicable to PUP. It was just and equitable that only losses should be taken into account. The contract was clear that lay-off was unpaid. The complainant had not incurred loss as he would have stayed on PUP had he not been made redundant. While on lay-off, the complainant could not have triggered his redundancy lump sum entitlement.
The respondent relied on Saul and others v Mahony Manufacturing Signs UD737/2003 regarding the need to consult in a redundancy situation where the employer sees this as futile. The Employment Appeals Tribunal cited Polkey v AE Dayton Services  IRLR 503. The respondent cited the Labour Court authority of C&F Tooling v Cunniffe DWT15125 so that any award on Von Colson grounds must be proportionate.
The terms and conditions of employment document cites the 1st March 2016 as the first day of the complainant’s employment as Sales Manager. It was signed by the parties on the 30th September 2016.
The respondent submitted its accounts, showing a drop in net profit in May 2020. It records that employees were on the wage subsidy or received the PUP. It continued to pay rent.
The respondent messaged the complainant on the 17th March 2020 to say that he was being placed on temporary lay-off because of the pandemic. This was confirmed the following day and the complainant was paid outstanding annual leave and a bonus due from 2019. In further correspondence, the respondent outlined that the complainant was not working so could not go on the wage subsidy scheme.
The minutes of the company meeting of the 19th May 2020 record that the directors decided to restructure the business. The Managing Director could deal with sales enquiries and project management, so that the Sales/Project Manager role was under consideration for redundancy.
The respondent Managing Director contacted the complainant by phone on the 26th May 2020 to say that his role had been selected for redundancy. The respondent said that it had investigated whether there were alternatives. The respondent paid the complainant a redundancy lump sum entitlement (€6,744), based on a May 2015 start date.
The complainant drafted a reference for the respondent to sign. This stated that the complainant’s role was terminated because of the pandemic. It cites May 2015 as the start date.
The respondent outlined that the pandemic had a significant effect on its business, reducing turnover by around 37%. Turnover for May 2020 reduced by almost 100%, down to €316. The respondent showroom remained closed until August 2020, and it carried out virtual site surveys. It stated that it considered the complainant for a remote sales role but decided that the complainant did not have the skills for the role.
The respondent submitted that lack of consultation does not automatically render a redundancy an unfair dismissal. It could not meet the complainant because of the pandemic. It relied on Polkey and Saul to argue that regard had to be made to whether consultation or procedures would have changed the outcome.
The respondent submitted that the complainant had waived his right to notice pay as he had been provided with the option of availing of it. He was only entitled to two weeks of notice as his employment commenced in September 2015.
The respondent outlined that the complainant was supplied with a statement in September 2016. The respondent submitted that any Terms of Employment (Information) claim was out of time and did not merit an award.
The respondent submitted that the complainant was paid €807.69 per week and not the amount he claimed. It had paid the complainant a redundancy lump sum to the 9th June 2020 even though his employment ended on the 29th May 2020. The respondent submitted that had the complainant not been dismissed, he would have continued on unpaid lay-off indefinitely and could not have triggered his redundancy. The complainant did not, therefore, incur loss attributable to the dismissal and any such loss was limited to the loss of use of the company phone and van. It submitted that the complainant would enjoy a windfall if he was compensated for an unfair dismissal claim when he had also received PUP. It submitted that the redundancy lump sum already paid to the complainant would be required to be deducted from any award made pursuant to the Unfair Dismissals Act.
Summary of Complainant’s Case:
The complainant outlined that the redundancy was opportunistic. There had been a recent written warning with no process. It was submitted that the respondent was not ‘hot’ on process. There were well established procedural requirements, which the respondent did not follow. There was the memo of the 8th November 2019 and the warning of the 15th November 2019. It had been premature to proceed with the redundancy.
The complainant outlined that the redundancy was presented as a fait accompli with no prior consultation. The complainant was not allowed the right of representation and there was no right of appeal. There was no proper consideration of alternatives, and no alternatives were discussed. It was not enough for the respondent to look at the alternatives without talking to the employee. There was no financial pressure on the business and the information now relied on by the respondent was not presented to the complainant as part of the process.
It was submitted that the complainant was told he was being made redundant and a week later given a letter regarding his redundancy entitlements. Sales between January and April 2020 show a 20% increase from the previous year. No financial information was given to the complainant as part of the process. New roles were created in July 2020 to deal with the growing business. The respondent had not explained the basis of the complainant’s selection in the phone call.
In respect of financial loss arising from the dismissal, the complainant outlined that he was claiming losses of €45,000. He found new employment after 19 weeks, incurring a loss of €18,620. His new role is paid €391 less per week. He sought four weeks of notice pay as he had commenced employment in April or May 2015.
In cross-examination, the complainant said that he had been on lay-off and not paid by the respondent. He was on PUP and looking for work. He had an engineering background and had previously run a property maintenance company. He had a mortgage to pay and children to put through education. The complainant said that he had been devastated by the redundancy. There had been no communication from the respondent between the 18th March to when the respondent was due to re-open. He had accepted the figures and the notice period proposed by the respondent and the accountant.
The complainant outlined that he had sent 40 CVs to local companies and received two or three replies. He obtained a role in the public service on the 27th October 2020 and is paid €589 per week. This was a warranted role, but he had to wait to be promoted. In closing, the complainant outlined that an employer could not decide not to consult regarding a redundancy and it did not have all the answers.
In submissions, the complainant outlined that his redundancy was not genuine and did not comply with procedures. The complainant referred to events in 2019, including the warning of the 14th November 2019. The complainant submitted that his dismissal was opportunistic and presented as a fait accompli. There was no proper consideration of alternatives and no financial pressure on the business as he was on lay-off. The complainant pointed to the respondent’s Facebook post of the 28th June 2020 which referred to ‘unprecedented demand for our business garden rooms’. He cited the Irish Times article featuring the respondent. The figures for January to April 2020 showed an increase in sales of over 20%. The complainant outlined that he had not waived his entitlement to notice. He was not provided with a signed statement of his terms and conditions of employment, as only he had signed the document.
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment ended on grounds of redundancy. The respondent is a garden centre and the showroom shut its doors during the lockdown. The complainant was placed on lay-off on the 18th March 2020 and was in receipt of the Pandemic Unemployment Payment. The respondent availed of the Temporary Wage Subsidy Scheme, but not in respect of the complainant.
The Covid-19 pandemic and the resulting lockdowns had an unprecedented impact on businesses and workplaces. Many were adversely affected or closed. This led to very significant Government interventions, for example the wage subsidy schemes and PUP. These interventions supported employers and employees adversely affected by the pandemic, including businesses that had to close or whose turnover was reduced. The supports were payable in respect of employees who were on lay-off or those who were still at work (at home or in the workplace) in adversely affected businesses. It was a time of uncertainty and the lockdown lasted far longer than initially expected.
The respondent showroom closed but one aspect of the respondent business was well-placed to develop. The respondent sold and built garden rooms, i.e. self-contained structures for home offices, home gyms etc. As discussed in the Irish Times article, the respondent business was well-placed to take advantage of the increase in demand. The respondent Managing Director gave evidence of being busy dealing with clients. The respondent engaged a change management consultant to advise on developing the business and advertised to hire new staff (see the advertisements posted online).
This is the background against which the complainant’s employment ended. The complainant was placed on lay-off on the 18th March 2020. The respondent referred to correspondence from its accountant and financial statements for April and May 2020. It referred to the minutes of the 19th May 2020, which concluded that the Managing Director would do the project management / sales role and that the complainant’s role was redundant. The complainant was informed of this in the phone call of the 26th May 2020. This was confirmed in the email of the 27th May 2020 and the redundancy notice of the 28th May 2020. There was no process involving the complainant. He was not consulted about alternatives to redundancy and possible alternative roles, in particular in the growing side of the business.
The contract of employment provided a procedure to be followed in the event of the complainant’s dismissal, including the right to state his case and an appeal. The High Court in JVC Europe v Panisi  IEHC 279 held that the genuineness of a redundancy can be assessed by whether the employer followed a procedure set out in the contract of employment. Here, there was no process involving the complainant. He was not afforded the opportunity to suggest alternative roles he could do.
Section 6 of the Unfair Dismissals Act provides a presumption that a dismissal is unfair unless there are substantial grounds justifying the dismissal. Section 6(3)(b) deems a redundancy dismissal to be unfair if the employer did not comply with an agreed procedure where employees in ‘similar employment’ are not dismissed. Section 6(4) provides grounds on which a dismissal can be deemed not to be unfair, including redundancy. It is well-established that redundancy has the essential characteristics of being impersonal and relating to change (see St Ledger v Frontline Distributors Ireland UD56/1994). Section 6(6) imposes the burden of proof on the employer and section 6(7) allows for regard to be had to the reasonableness of the employer’s conduct and adherence to any agreed procedure or Code of Practice. There is no specific Code of Practice regarding the making of redundancies or the selection of employees for redundancy.
Where a dismissal is deemed to be an unfair dismissal, section 7 provides three alternative forms of redress: re-instatement or reengagement where appropriate or just and equitable compensation. It provides that in assessing compensation, regard can be had to whether the conduct of either the employer or the employee contributed to the financial loss incurred, whether the employee mitigated their loss, the employer’s adherence to any procedure or Code of Practice and the extent to which the employee contributed to the dismissal. Section 7(2A) provides that payments to the employee under the Social Welfare Acts shall be disregarded in calculating financial loss. Financial loss includes actual loss and any estimated prospective loss, as well as the loss of the value of an entitlement under the Redundancy Payments Act.
Saul v Mahony Manufactured Signs & Polkey
The respondent refers to the Employment Appeals Tribunal decision of Saul v Mahony Manufactured Signs UD37/2003. Here, the Employment Appeals Tribunal referred to the House of Lords authority of Polkey v AE Dayton Services  IRLR 503 to find that where consultation would be futile, it may be reasonable for the employer not to engage in consultation prior to redundancies. While it referred to Polkey, the Employment Appeals Tribunal in Saul was carrying out a standard section 6 analysis of a redundancy dismissal: was there a genuine redundancy, including whether the employer was reasonable in its conduct.
The following considerations should be borne in mind in assessing the persuasiveness of the Polkey judgment in Irish employment law, and the British Labour Pump line of authority that Polkey set aside and how Polkey is applied now (see in Northern Ireland, see Conn v Department of Social Development 154&564/2011 and Software 2000 v Andrews  IRLR 569 in England). It is first important to understand Polkey’s place in UK employment law, in order to evaluate its persuasiveness in Irish employment law. Polkey arises where a dismissal is deemed unfair because of a procedural defect, as opposed to a substantive defect, the question is whether the employee would have been later dismissed lawfully and in a procedurally correct way because of the underlying substantive basis for the dismissal (for example an ongoing conduct issue or a persisting redundancy situation). Polkey modified the application of this ‘no difference’ rule to measuring compensation and not to assessing the lawfulness of the dismissal. Importantly, it reversed the British Labour Pump line of authority, which had applied the ‘no difference’ rule to assessing the lawfulness of the dismissal, i.e. assessing whether an actual dismissal was lawful by considering the fairness of a hypothetical, future dismissal, an approach aptly described by Desmond Ryan BL as ‘corrosive’ [Redmond on Dismissal Law, 3rd edition at para 13.24]. In UK employment law, a Polkey deduction can be made following a finding of unfair dismissal on procedural grounds where there is a substantive basis for the dismissal. It may not be applied where the dismissal was substantively unfair (see, for example the ET decision of Charlton v Active Cleaning, 14th May 2021) and cannot be double-counted with any deduction made in respect of employee contribution (see Lenlyn UK Ltd v Kular).
Again, the EAT in Saul v Mahony Manufactured Signs was not applying a ‘no difference’ rule to the substantive fairness of the dismissal; rather the EAT held there was a genuine redundancy situation and the circumstances made it reasonable for the employer to engage in the level of consultation it did (none). Whatever the circumstances of the particular case, this was the well-established approach of assessing whether there was a genuine redundancy, including whether the employer had acted reasonably and in line with any redundancy procedure, for example set out in the contract of employment. This is an assessment of the actual dismissal and not some hypothetical one.
In Irish law, section 7 of the Unfair Dismissals Act sets out the factors to be considered in assessing compensation, including the employee’s contribution to both the dismissal and the financial loss arising from the dismissal. This provision is broad enough to appropriately measure compensation in cases where the employee contributed to the dismissal or to the financial loss arising from the dismissal. Regard is also had to the employer’s adherence to agreed procedures or to a Code of Practice. This is all within the rubric of ‘just and equitable’ compensation, which may take into account any underlying substantive issue in ‘having regard to all the circumstances’ [section 7(1)(c)(i)].
Application of the law to the facts
Having considered the evidence and the submissions of the parties, I find that the complainant was unfairly dismissed from his employment with the respondent. The respondent has not demonstrated that there were substantial grounds justifying the dismissal or that a genuine redundancy situation arose.
First, I acknowledge that the period from March to May 2020 was a turbulent and uncertain period. This led to the complainant being placed on lay-off. The respondent availed of the wage subsidy scheme, albeit not in respect of the complainant. As he submitted, the complainant was not costing the respondent anything. There was, therefore, no urgent impetus for the respondent to act.
Second, the complete absence of any procedure, including adhering to that provided in the contract of employment, allows an inference to be drawn in respect of whether there was a genuine redundancy. The respondent re-oriented its business and decided, without any input from the complainant, that the complainant did not have the skills for the new role. It was not reasonable for the employer to present the complainant with a fait accompli.
Third, it was entirely inconsistent for the respondent to say that, on the one hand, the complainant’s role was redundant and on the other, to advertise for new staff. The newspaper article points to a growing business and the respondent’s own evidence was that they were busy. The complainant ought to have had the opportunity to return to work and to contribute to this growth.
It follows that the complainant was unfairly dismissed and the claim succeeds. He seeks compensation and is entitled to the financial loss attributable to the dismissal.
Applicable weekly wage
In assessing financial loss, the first issue to determine is the complainant’s weekly wage. The complainant referred to receiving a weekly wage of €980.76. The contract refers to a salary of €43,000. The complainant’s redundancy entitlement was calculated using a gross weekly wage amount of €807.70. I note, however, that the statutory limit of €600 per week was applied to the calculation of the redundancy lump sum, so it made no difference to the complainant whether it was the €980.76 he said he was paid or the €807.10 stated by the respondent.
The respondent referred a summary document of payments made to the complainant in 2020 to say that the complainant was paid €807.69 per week gross or €603.54 per week net. This schedule, however, does not account for the bonus payments the complainant was entitled to receive, as referenced in the email of the 18th March 2020. Including bonus payments brings the complainant’s weekly wage up to €980.76 per week and this is the figure I use in calculating financial loss.
Date of dismissal
I find that the date of dismissal is the 12th June 2020 as this was the end date of employment stated in the redundancy notice.
Assessing financial loss
Section 7 defines ‘financial loss’ as including’any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’
The complainant outlined that he mitigated his loss arising from his dismissal by applying for roles. He began new employment on the 27th October 2020 and was paid €589 per week. I note that the complainant will likely be promoted over time, given the professional experience he has built up during his career. Any promotion will depend on the opening of suitable promotion competitions.
The respondent submitted that the complainant did not incur financial loss arising from the dismissal as he would have been on lay-off. It also submitted that the complainant would enjoy a windfall if he was awarded financial loss in full while in receipt of the Pandemic Unemployment Payment. I do not accept that either submission diminishes the financial loss attributable to the dismissal. First, I have found that there was not a genuine redundancy; the business, including sales, was growing. If the complainant had not been dismissed, he would have returned to work, for example at the time the respondent advertised for new hires or was promoted in a national newspaper. His dismissal prevented the complainant from returning to work.
Second, the Pandemic Unemployment Payment is clearly encompassed by the disregard in section 7(2A) of the Act. PUP was initially administered via section 202 of the Social Welfare Consolidation Act 2005 and later given its standalone legislative basis in the Social Welfare (Covid-19) (Amendment) Act 2020. It was paid to employees who lost their employment income during the pandemic. The complainant was entitled to PUP on being put on lay-off and no longer being paid. He was no longer in employment following his dismissal and continued to be entitled to PUP. Given that the disregard is set out in law, there is no legal basis to then have regard to the PUP payments in reducing financial loss.
For completeness, I note that the complainant was paid a redundancy lump sum payment. He is, therefore, not entitled to compensation for financial loss attributable to any loss or diminution of any entitlement to the Redundancy Payments Act as he was paid the lump sum. Section 19 of the Unfair Dismissals Act provides the circumstances that a lump sum should be repaid to the employer and those circumstances are where the employee is re-instated or re-engaged. Neither applies in this situation, so there is no statutory basis to deduct a lump sum payment made from actual or prospective loss incurred.
It is also not just or equitable to deduct a lump sum already paid, as the lump sum is based on service and financial loss (excluding any loss or diminution) is based on actual or prospective loss. Section 7 already provides grounds to reduce any award of compensation in light of the employee’s contribution to the dismissal or to financial loss, including a failure to mitigate. It also takes account of the employer’s adherence to procedures.
Deducting a lump sum from an award of actual or prospective loss undermines the effectiveness of the protections offered by the Unfair Dismissals Act, especially for employees with long service. Such an employee will have a relatively significant lump sum entitlement and they will have little protection from the Unfair Dismissals Act if the employer gauges that the employee should find employment relatively quickly. This leaves this category of employee open to an egregiously unfair dismissal.
I have found that the complainant’s weekly wage was €980.76 per week. The complainant is entitled to the loss arising from the 12th June 2020 to the 27th October 2020. I assess that the complainant is entitled to the shortfall incurred in the first 40 weeks of the new role. He is likely thereafter to progress in the new role and will also receive increments. I assess the period up to the 27th October 2020 as being 17.5 weeks, taking account of the two weeks of notice awarded below. This is €17,163.30. The complainant’s new weekly rate of pay is €589. The difference between the two amounts is €391.76. This weekly loss over 40 weeks amounts to €15,670.40. The sum of these amounts is €32,833.70. It is well established the awards pursuant to the Unfair Dismissals Act are made in respect of gross pay and are not exempt from taxation per section 192A of the Taxes Consolidation Act.
This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. It is not disputed that the complainant was not paid notice on the termination of his employment. The respondent submitted that the complainant had waived this entitlement in the period between the complainant being told that his employment was ending and his employment terminating. The respondent stated that if the complainant was to be paid notice pay, he would have to be restored to pay roll and would therefore lose his entitlement to PUP (see the email of the 27th May 2020). The respondent stated that it was unfair to require the complainant to work his notice. It also submitted that the complainant had worked for the respondent for less than five years, so was entitled to two weeks of notice pay.
Section 7 provides that nothing in the Act shall prevent an employee from waiving the entitlement to notice or being paid in lieu of notice. The complainant was not paid in lieu of notice. Applying Action Health Enterprises v D’Arcy UDD 2019, there must be an offer from the employer of either payment in lieu of notice (and presumably also to waive notice) and a ‘free acceptance of that offer’ from the employee. There is no evidence of the complainant freely accepting the waiving of his right to notice or being paid in lieu of notice.
In respect of the start date of this employment, I note elsewhere that the statement of terms of employment does not state the correct date the employment commenced. The parties agreed that the employment commenced in 2015 but differed whether it was May or September. In the absence of any better source of information, I determine the start date according to the information supplied by Revenue on the 28th August 2020. This states that the complainant’s employment commenced on the 7th September 2015.
This means that as of the termination of his employment on the 12th June 2020, the complainant had less than five years’ service. He is, therefore, entitled to two weeks of notice pay, i.e. €1,961.52.
This is a complaint pursuant to the Terms of Employment (Information) Act. Section 3 requires the employer to provide to the employee a statement of their terms of employment within two months of the employment commencing. This should contain particulars of the complainant’s employment, including an accurate statement of the date of commencement of the employment as well as information regarding intervals for remuneration.
I accept the Managing Director’s evidence that the statement he retained was signed by him. The statement retained by the complainant is not signed by the employer, but I do not consider this to be a serious contravention. The underlying Written Terms Directive provides that the statement should include details of the initial basic amount of salary and any other component amount, for example a bonus scheme.
Here, the start date provided in the statement was inaccurate; it states that the employment commenced on the 1st March 2016. This inaccuracy contributed to the different recollections of when in 2015 the employment started (addressed above). The inaccurate date of commencement represents a contravention of the Terms of Employment (Information) Act. The complaint is within time as the failure to provide an accurate statement is a subsisting breach of the Act. The complaint was lodged within six months of the employment coming to an end.
Given that there has been a contravention of the Act and the need to ensure that redress is proportionate, dissuasive and effective, I award redress of €1,500.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 that Act.
I decide that the complainant was unfairly dismissed by the respondent, and I award redress of €32,833.70.
I decide that there was a contravention of the Minimum Notice & Terms of Employment Act and I direct that the respondent pay to the complainant compensation of €1,961.52.
I declare that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,500.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / genuine redundancy / financial loss
Minimum Notice / waiver
Terms of Employment