ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030404
Parties:
| Complainant | Respondent |
Parties | Mark Doyle | N&C Enterprises Ltd |
Representatives |
| Coughlan White & Partners Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040461-001 | 17/10/2020 |
Date of Adjudication Hearing: 08/12/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 17th October 2020, the complainant referred a complaint pursuant to the Unfair Dismissals Act. This was referred to adjudication on the 8th December 2021 and this was held remotely.
The complainant attended the hearing and was represented by Kieron Connolly. The respondent was represented by Christine Traynor, Coughlan White & Partners solicitors. Two witnesses attended to give evidence. The parties submitted additional documentation, including pay slips, bank statements and company accounts after the hearing.
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.
Background:
The complainant’s employment ended on the 18th May 2020. The complainant asserts that he was unfairly dismissed while the respondent asserts that the complainant’s role was redundant. The complainant was paid €5,763 per month. |
Summary of Respondent’s Case:
Evidence of the management consultant Having affirmed, the management consultant said that he provides external consultancy services to the respondent. He is related to the company directors. While the respondent had a turnover of €6 million, it had excessive liabilities, leading there to be €576 in the bank in 2020. There were 20 redundancies in 2020, including four at the time the complainant was made redundant. In cross-examination, the management consultant denied that the respondent had purchased new trucks in 2020. He said that the bagging plant was sold in March 2020. The management consultant said that the complainant was paid in full until the end of his employment. Evidence of the managing director The managing director outlined that he returned to the role in 2020 after a period of sickness. There was a suggestion that the company be put into liquidation, and it obtained funding from a family member. The managing director denied making the statement attributed to him by the complainant on the 14th February 2020, which the complainant had described as bullying. The managing director said that the complainant had only made the bullying complaint after his employment ended, so it could not be dealt with. The managing director said that he now managed operations and sales and a named colleague helped with dockets. In cross-examination, the managing director strongly denied that he was angry that the complainant was raising health and safety issues. He did not know of the complainant’s complaints of the 14th February and the 5th March. He accepted that redundancy was first broached on the 20th April, but they had looked at everything and there was no role for the complainant. He said that there were no alternatives to discuss, and the complainant had accepted redundancy. Submissions on behalf of the respondent In submissions at the hearing and in written submissions, the respondent outlined that this was a genuine redundancy and that the company had been insolvent in December 2019. The respondent was entitled to restructure and there were no alternative roles for the complainant. The managing director took on the complainant’s tasks and health and safety was out-sourced. The bullying complaint did not meet the threshold in Ruffley and Quigley. |
Summary of Complainant’s Case:
The complainant outlined that he started in a sales role in 2017 and moved to operations manager when the managing director was off. The complainant completed a FETAC level 7 course in health and safety. He said that there was a blatant disregard for health and safety. The complainant outlined that he was verbally attacked by respondent directors after raising health and safety issues. He stated that on the 12th February, a named director asked him whether he knew he was a company director and said ‘this sh*ite of running back to the [then MD] and telling him everything has to f*cking stop I’m f*cking sick of it’. The complainant stated that the managing director had also said that he would ‘f*cking kill [the complainant]’ if he kept raising ‘health and safety sh*t’. The complainant’s email of the 12th February sets out his account of the incident. The complainant outlined that he started a new role on the 1st July 2020 and was on €55,000 per year in a branch manager role. He has since been promoted and his pay increased to €65,000 per year. In cross-examination, the complainant said that he was not privy to the accounts. He had asked for a severance package as he had worked since he was 15 and was aware of what it was. He said that it had been opportunistic to get rid of him by way of redundancy. It was put to the complainant that there was no bullying issue raised until the 20th April; he replied that he had raised it with the acting MD. The complainant said that his main role of looking after the ‘top’ and the ‘bulk’ were always there, and the respondent could have waited until the end of the lock-down. |
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. The complainant was informed of his redundancy on the 20th April 2020 and his employment ended on the 18th May 2020. He had been on lay-off related to the pandemic since the 24th March 2020. In the background of this case are the bullying/health and safety issues, for example the incidents of the 14th February and 5th March 2020. Statutory background Section 6(1) of the Unfair Dismissals Act provides that a dismissal shall be deemed unfair, unless there are substantial grounds justifying the dismissal. Section 6(2) sets out circumstances where a dismissal will be unfair if the dismissal was wholly or mainly due to those circumstances. Section 6(4) provides that a dismissal will not be an unfair dismissal if it was wholly or mainly due to the ‘redundancy of the employee’. Section 6(6) is clear that the burden of proof in section 6(4) is on the employer. Section 6(7) allows for regard to be had to the reasonableness of the employer’s conduct and the employer’s adherence to any rules or Code of Practice. There is no specific Code of Practice addressing redundancies. Respondent procedure Clause 21.9 of the employee handbooks set outs that the prime consideration in any redundancy process was to protect the employment of as many people as possible. Selection would take place to retain the necessary skills and expertise required for the business. The respondent reserved the right to use a matrix and would inform the employee of the criteria to be used. LIFO could also be applied. At paragraph 8, the High Court in JVC Europe v Panisi [2011] IEHC 279 held ‘As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision. As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.’ Application of the law to the facts It is striking in this case that redundancy was first raised on the 20th April 2020 and discussions moved immediately on to the terms of the complainant’s employment ending. There was no discussion of alternatives, and no formal consultation took place. No matrix was suggested, and LIFO was not applied. The complainant was told that his employment was ending. This was, of course, at the early stages of the pandemic. The complainant was on lay-off. While the bagging facility was sold, the respondent continued to operate a quarry, where the complainant worked. The complainant was on the Pandemic Unemployment Payment at this time, so it is not clear why the respondent had to act in April 2020. As put in cross-examination, why not wait until the construction sector was able to re-open? I am satisfied that the complainant was not on the pay roll at this time, as evidenced by his bank records. The health and safety issues play a prominent role in the assessment of this case. The complainant had completed a FETAC level 7 qualification and was the only senior manager to have done so. Whatever the internal certification process in place (‘ticketing’), it was the complainant who obtained the accredited qualification from UCD. Correctly, he emphasised the importance of health and safety, for example in the use of a loading shovel vehicle. There was a changing of the guard amongst the respondent directors and the complainant’s heralding of health and safety was not appreciated. As noted at paragraph 5 of the Panisi judgment “Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” I find that in this case, the respondent has not discharged the presumption in law that the dismissal was unfair. This arises because of the absence of any process or consultation preceding the decision to tell the complainant he was redundant. He was presented with a fait accompli. While the bagging facility was sold, I am not sure that the accounts reveal the dire straits suggested by the respondent. In any event, the complainant and others were on lay-off and not costing the respondent anything. There is the significant backdrop of the health and safety issues raised by the complainant and the incidents of the 14th February and the 5th March 2020. Taken together, I find that the respondent has not shown that the complainant’s role was redundant. The complainant, therefore, was unfairly dismissed. Financial loss Section 7 defines ‘financial loss’ as“in relation to the dismissal of an employee, includes 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 2007, or in relation to superannuation.” The complainant was paid a redundancy lump sum, so I make no award for ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2007.’ The complainant incurred actual and prospective loss. He was paid €5,763 per month. He incurred loss of income from the 18th May to the 30th June 2020. He incurred loss of income as his pay in the new role was €14,000 less per annum than with the respondent, albeit that this difference abated when he was promoted and paid €65,000 per annum. The May – June 2020 period equates to €7,314 in financial loss. I note that the complainant obtained another role quickly and was promoted in that role. Taking the two components of loss, I award compensation of €21,314, taking account of the early full period of loss and then, the difference in pay as the complainant progressed in his new role. |
Decision:
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.
CA-00040461-001 For the reasons set out above, I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant redress of €21,314. |
Dated: 9th January 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / JVC Europe v Panisi [2011] IEHC 279 / redundancy |