Complainant

Respondent

Parties

David  Blake

Access Drains

Representatives

  Self-represented

Hugh Hegarty

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067218-001

06/11/2024

The Complaint is one of Unfair Dismissal where the Complainant was selected lay off for an indefinite period without resolution. The Complainant seeks a decision of the Adjudicator to the effect that they have been unfairly dismissed.

It is the Complainant case that they commenced employment in November 2022 with the Respondent. Their work was that of a Drainage Jetter paid €807.60, gross weekly, where they worked a 40-hour week.

The set out that they were issued with a disciplinary email on the 19.12.2023 for absences and failing to attend on site. The absence referred to was where the Complainant suffered a work-related injury, and this was certified.

The Complainant set that their hours of attendance would be from 9.30 am, but and it was put upon him to attend earlier without consultation or overtime pay.

The Complainant never received a contract of employment nor handbook until after his disciplinary hearing on Friday, January 5th.

The Complainant received a letter on July 1st that I he was being laid off without pay from the 8th of July and despite numerous requests for an update on the resumption of his role without answer.

On the 4th of October he emailed the Respondent outlining that he could not  be indefinitely laid off due to lack of work and noting that an employee in the same role was recently hired in May where he was subject to lay off in July. It is his case that he has been unfairly dismissed. He had asked to be reinstated in advance of referring his complaint to the Commission with back pay to the date of his original lay-off.

It is the Respondent case that the Complainant has not been dismissed and is still an employee of the Respondent.

He commenced employment on the 16th of November 2022 and was subsequently issued a contract, dated the 16th of November 2022, which he failed to sign. The Respondent accepts that this contract was issued after the employment began.

In 2024 the Respondent suffered a downturn in business and was forced to lay off the Complainant on the 08th of July 2024 and wrote again to the Complainant on the 25th of October 2024 to inform that they were not in a position to provide him with further work, and he might wish to consider a “redundancy” offer similar to the statutory terms of redundancy as if he had the required service. This was a gesture of goodwill on the part of the Respondent and this offer was still valid at the time of the hearing.

Terms and Conditions of Employment

It has been presented that the Complainant was issued a contract after starting and in the hearing, I heard evidence, which I accept, that this was offered much later with the starting date on the paperwork this is referred to by the Respondent in their submissions.

Offer of Payment Equivalent to Redundancy

I note the offer of the Respondent that they were prepared to make an offer equivalent redundancy to the Complainant as a good will gesture in the cessation of the employment.

Other Employees Retained

Regarding the other employee with less service than the Complainant it emerged that they had a class “C” licence in a situation where one of the Company Directors who normally drove the class “C” vehicle was ill and cover may be required. The Complainant does not have a “C” licence, and it was the Complainant assertion that the other employee has never driven the “C” class vehicle. However, they Complainant did not produce any evidence or witnesses to that assertion.

The Issues Referred To The Commission

The matter of this complaint comes down to the fair or unfair selection for lay off.

It is not referred as a complaint under the Terms of Employment (Information) Act nor the Redundancy Payments Act and the issue to be resolved is if the selection of the Complainant for lay-off was fair, and if unfair, if this amounts to dismissal.

Redundancy

Under Section 12 of the Redundancy Payments Act 1967 the Complainant would ordinarily have an entitlement to claim redundancy after a period of lay-off. However, in the present case the Complainant does not have a legal entitlement as they lack the 2 years’ service to qualify for redundancy under the Act and that route of redress was not open to them.

In any event, the Respondent has offered the same terms, and the Complainant has refused this in circumstances where the Respondent has held the offer open for a long period of time.

Unfair Dismissal

The Respondent case is that there has been no dismissal and that, technically, the Complainant is still employed albeit in a situation where he is not in receipt of work or payment.        

Clearly the employment relationship is frustrated in the facts and circumstances on this case where there is no prospect of further work, as evidenced by the letter from the Respondent, inviting a redundancy to claim and thus accepting that there is no prospect of a return to employment.

Whilst the Complainant has not been dismissed formally, he is on notice that there will be no further prospect of returning to work.It would be illogical to acceptthat a litigant could not bring a claim on a technical issue of the Respondent not accepting the termination of the contract.

In other circumstances where the Respondent was seeking to get the Complainant back to work an argument of no dismissal may have some validity, but not in this case.           

The Complainant has been selected for lay off in circumstances which he claims were unfair. However, the Respondent has a right to retain other employees with different skills and in the evidence presented where another employee with less service has a different and potentially more useful category of driving licence, although little evidence was presented as to how this decision was arrived at.

Dismissal

The issue is if there is an actual dismissal and if that dismissal is fair. The above does not change the fact there was no evidence presented of a process used for the selection; and the selection of one employee over the other does not appear to have had any analysis nor engagement and has been made arbitrarily.

This is fundamentally unfair in its operation, and I must find that the date of dismissal de facto is the 25th of October 2024 when the Respondent wrote to the Complainant to inform them there was no hope of further work and offering the same terms as redundancy, which they were not obliged to do. They were however obliged to offer the Complainant a fair process and for this reason the dismissal, as I have outlined, is technically unfair.

Remedies

I cannot order the re-instatement of the Complainant in circumstances where there is a falloff in trade and the Complainant is the process of establishing their own business, a process which has taken considerable time and effort to arrange.

 The Complainant has set out little description of losses and has not sought re-engagement or re-instatement. However, I am required to consider these as a remedy, and I find neither re-engagement nor re-instatement a suitable remedy.

Compensation and Mitigation of Loss

It is well settled law under the Act that a Complainant must demonstrate an attempt to mitigate their losses, and the Respondent raised this at the hearing. The Complainant has set out that they have not sought work as they were in the long-drawn process of setting up their own business as a Taxi Drive and had suffered some illness.

I have a great deal of sympathy for the Complainant in matter and their personal issue.  I have no doubt this is an arduous process, but I do not see how it could prevent him from seeking to mitigate his losses elsewhere as he would not be required to present himself in the application 40 hours per week.

I cannot find that the Complainant mitigated his losses as required. The Complainant also submitted details of Social Welfare payment related to illness, however, I am discounting these details as the matter is one of a technical dismissal and there is no reason to reduce any award to the Complainant based on this payment where I am now dealing with a technical matter.

Section 7(1)(c) of the Acts: -

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

Section 7(2)(c) provides that in examining the financial loss, an Adjudicator must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow an Adjudicator to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

In assessing redress, I have taken into account the evidence presented and the efforts the Complainant has directed to his new business, however, the Complainant has not provided sufficient details of his loss and has only offered an outlined description.

Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal taking into account the Complainant has not provided specific details on his attempts to mitigate the loss and I am mindful of the decision of the Labour Court in Cityjet and Ramon Sanchez Gil (UDD215) where the Court removed compensation from an Adjudicator’s decision where there was no demonstration of mitigation of loss.

Taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €4500.00 gross as is just and equitable in all the circumstances.

For the reasons outline above I find the complaint of unfair dismissal well founded and taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €4500.00 grossas is just and equitable in all the circumstances.

Technical unfair dismissal, notice of dismissal by invitation, to redundancy equivalency