Complainant

Respondent

Parties

Piotr  Zientara

Apicem Projects Limited trading as Apicem

Representatives

Conor McCrave of Setanta Solicitors

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-00063150-001

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00063150-002

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063150-003

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063150-004

29/04/2024

The Complainant was dismissed from his role as a General Operative/ Cleaner in December 2023 by the Respondent who asserted he was being made redundant.

The Respondent did not pay the Complainant any redundancy payment on the basis that he did not have 2 years’ service. The Complainant had worked for another company which was also owned by the same person as who owns the Respondent since 2018 but this had closed in 2022.

The Complainant submitted four complaints.  Firstly he argues he was unfairly dismissed and not made redundant. In the alternative he submits that if he was made redundant in compliance with the Unfair Dismissals act he had continuous service from 2018 and was entitled to lump sum payment as provided for under the Redundancy Payments Act. He also argues that the same service entitles him to four weeks’ notice pay rather than the single week he was paid. He also alleges he was not given any statement of particulars of employment as required by the Terms of Employment (Information) Act.

The Complainant was represented at the hearing by Mr Conor McCrave and Eimhin Fitzgerald of Setanta Solicitors. He gave evidence under affirmation.

He had worked continuously for Mr O’Brien since 2018. He was dismissed without warning on the 4th of December 2023. He was told by Mr O’Brien that he was going to keep up his two remaining contracts and then close the business when they finished. He was paid for the week and then paid his leave. He later found out that the Company was carrying on.

He only began looking for a job in March 2024

Mr Pat O’Brien the Respondent’s principal director and shareholder attended the hearing. He gave evidence under affirmation.

The Complainant’s previous job was with a different employer which ran into financial difficulty. When Mr O’Brien set up the Respondent he invited the Complainant to take up a job with it and he did so in September 2022. It was a new role.

 Mr O’Brien’s key right hand man became unwell and it was clear that he could not continue to operate the business at the level it had been operating it. He told the Complainant he was easing off work in December 2023 and would no longer need him. He paid him until the end of the week.

At the time the Company consisted of six people, including himself. Four of these were tradespersons and two were labourers. They are now down to three people, including one labourer and one part time person.

He accepts that Apicem finished the various projects OB Shopfitting were working on and that there was a degree of continuity between the two businesses but he believes Apicem is a different operation. 

He does not think it is feasible for companies of this size to create selection matrixes.

CA-00063150-001 Unfair Dismissals Act

The Complainant began employment with a company called OB Shopfitting and Construction in July 2018.  He worked as a General Operative/Cleaner helping to keep the worksite clear while his colleagues carried out their trades.

He was not provided with an employment contract.

In August 2022 the OB Shopfitting ceased trading. The Respondent argues that the Complainant was recruited to a new company with a new role. The Complainant argues they carried on in exactly the same role and their employment was taken over by Apicem Projects Limited. He was still not provided with an employment contract after he moved to Apicem.

In December 2023 the Complainant was let go without any warning.

His evidence was that he was told that the Respondent was closing. Mr O’Brien disputes this his evidence was that there was no work for the Complainant and he told him as such.

Mr O’Brien’s evidence regarding his business was generally quite credible. He described how their capacity to take on work had diminished due to circumstances out of his control and that he was generally not going to be able to keep up the amount of active sites and level of work he had previously.  In the circumstances he felt he had to let the Complainant go.

The Complainant’s solicitor has drawn my attention to the following cases:

Students Union Commercial Services Ltd v Alan Traynor [UDD 1726] where  the Labour Court outlined that: “In circumstances where redundancy is unavoidable, the employer is obliged to establish reasonable and objective criteria for selection and must apply those criteria fairly” and that this obligation was in the context of them having to undertake a reasonably thorough exercise to avoid redundancy.

The also refer to A Sales Director v An IT Company ADJ-00023978 where there was a “pool of one” for the redundancy selection process. That Adjudication Officer held “a particular responsibility then arises to ensure that the selection process is fair and objective, and that the sequence of events of identifying the post first, and the person second, is preserved to ensure the principle of impersonality is respected. It is certainly insufficient on its own to submit that a person is automatically in a pool of one because she was the postholder in the position selected for redundancy. ` It is necessary to show that there was something very specific about the skillset of the person holding the position that renders her unsuited for other positions, and something equally specific about the requirements of the position.”

It is accepted by both parties that there was another General Operative working for the Respondent at that time and there was no question them being pooled with the Complainant. It is also accepted that there was not any sort of exercise undertaken to consider alternatives to redundancy at that time nor was there any consultation with the Complainant. While I would agree with the Respondent that they are not required to build selection matrixes in the way larger companies are, they were still required to engage and consult with the Complainant to explore alternatives to redundancy and explain why he was selected as opposed to his colleague.

In the circumstances I am satisfied that the dismissal was in breach of the act.

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement.

As such I will limit considering redress to Section 7.1.C, that is financial loss. 7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

The Complainant obtained further employment approximately 32 weeks after his dismissal.

As such his financial loss is €23,120.

Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

With regard to Section 7 subsection a, I am satisfied that for the most part the dismissal was not attributable to an act or omission of the employer. The Respondent was in genuine difficulty in continuing its operations and further reduced headcount after the Complainant was terminated. What is clearly attributable to the employer was the failure to consider the Complainant for retention in the remaining General Operative role. This is pertinent because not only was the other General Operative retained but they were actually replaced when they voluntarily left a few months later.

With regard to Section 7 subsection c, I am not at all satisfied that the Complainant mitigated their loss. I refer to the position adopted in London Underground v Edwards [1998] IRLR 364, and endorsed in this jurisdiction in Benedict McGowan and Ors v The Labour Court and Ors [2010] 21 ELR 277), in which it was stated that expert tribunals “do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field.”

I find it hard to believe that a General Operative in the construction sector was unable to find any work in early 2024 and the evidence the Complainant has furnished me with is not particularly helpful in resolving this concern. He has only provided me with vague oral evidence and his progression plan from the Department of Social Protection which is dated over 6 months after he was terminated.

In the circumstances I am of the view that an award of €10,000 is just and equitable.

CA-00063150-002 – Redundancy Payments Act

The Complainant was unfairly dismissed. His complaint under the Redundancy Payments Act must therefore fail.

CA-00063150-003 – Minimum Notice & Terms of Employment Act, 1973

The Complainant was paid one weeks’ notice. He alleges he was entitled to four weeks’ notice as he had more than 5 years’ service, having being employed in July 2018 and then transferred to Apicem in August 2022. The Complainant provided evidence that the work he was carrying out continued and that the name of his employer changed. The owner and Director of both employers was Mr O’Brien and the substance of Mr O’Brien’s evidence in many ways supported the Complainant’s case and described the Respondent taking over the work of OB Shopfitting. The Complainant did not receive a redundancy lump sum from OB Shopfitting and Construction.

Schedule 1 of the act outlines how continuous service for the purposes of this act should be calculated. Section 7 of Schedule 1 provides:

7. Where the whole or part of a trade, business or undertaking was or is transferred to another person either before or after the passing of this Act, the service of an employee before the transfer in the trade, business or undertaking, or the part thereof so transferred—

(a) shall be reckoned as part of the service of the employee with the transferee, and

(b) the transfer shall not operate to break the continuity of the service of the employee,

unless the employee received and retained redundancy payment from the transferor at the time of and by reason of the transfer.

In the circumstances I am satisfied that the Complainant had more than 5 years’ service and was underpaid his notice by three weeks.

The Complainant is owed €2167.50 in notice.

CA-00063150-004 – Terms of Employment (Information) Act

It is common case that the Complainant was not given a statement of term and conditions of employment as set out in the act. I am satisfied that this caused a degree of confusion and uncertainty as to basic matters like his service.

In the circumstances I award a further three weeks’ pay in compensation.

CA-00063150-001

I find the complaint well founded and direct the Respondent to pay the Complainant €10,000.

CA-00063150-002

I find the complaint not well founded.

CA-00063150-003

I find the complaint well founded and direct the Respondent to pay the Complainant €2167.50.

CA-00063150-004

I find the complaint well founded and direct the Respondent to pay the Complainant €2167.50.