Complainant

Respondent

Parties

John  Moran

Metron Stores Limited t/a Iceland (in liquidation)

Representatives

  N/A

N/A

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-00057635-001

11/07/2023

The Complainant worked for the Respondent from 1 June 2016 until 31 March 2023, most recently in the role of Business Operations Manager, earning approximately €6,371.66 gross per month. On 11 July 2023, the Complainant filed a Complaint Form with the WRC in which he alleged, inter alia, that he had been constructively dismissed in breach of the Unfair Dismissals Act 1977 – 2015, as amended. He is seeking compensation.

The Complainant provided detailed written and oral submissions.

The Complainant outlined that on 25 January 2023, he was contacted on “LinkedIn” by Mr. Naeem Maniar, who he had known as the owner of “Homesavers”. They later spoke over the phone. Mr. Maniar told him that he had taken over the Respondent and that he was excited regarding the new business. The Complainant stated that Mr. Maniar sought information regarding security. The Complainant stated that he had not been informed, at that stage, that Mr. Maniar was his new employer and so he told him to go through the usual channels. They never spoke again.

The Complainant outlined that on 8 February 2023, the Commercial Manager emailed him and they met in “Homesavers” in Tallaght the following day. The Commercial Manager told the Complainant that he would be returning to his old role as an Area Manager. He was introduced to some of the team and was told that he would begin reporting into the Commercial Manager from 27 February 2023. They shook hands and the Complainant told him that he looked forward to working with him.

The Complainant stated that on 19 February 2023, he then met with the HR Director who was also the Respondent MD. They discussed his conversation with the Commercial Manager. The Complainant stated that he was happy with the move and that he had some questions. He was then introduced to the wider HR team in Tallaght. The HR Director told him that she would see him on 27 February 2023.

The Complainant outlined that over the next few days, the Respondent was sold to “Project PointTechnologies Ltd.”. He was contacted by his manager, who told him that the business would be transferred. The Complainant was told that the relevant people from “Homesavers” would come and talk to them on 17 February 2023. He said that no one came to talk to them. He said that they received two or three emails on 18 and 19 February 2023 in which they were told that they had the right to work for Iceland UK and if they did not exercise this right, “things would not go their way”. He said that Iceland UK then told them that this information was not correct. He said that the emails were of a “harassing” nature.

The Complainant outlined that on 20 February 2023, “Homesavers” personnel came to Head Office and proceeded to lay everyone off. The Complainant then attended a meeting on 24 February 2023 at Head Office to discuss the possibility of redundancies. He was told that the Respondent was looking into all options.

The Complainant stated that on 6 March 2023, he had a follow-up meeting with the HR Director during which they discussed suitable alternatives. He said that he asked her if this had been done already regarding his return to his old role as Area Manager. He said that she replied no. She told him that they were engaging in a redundancy consultation and that they had to follow a process. She said that his salary and his company car were an issue. He said that made a verbal complaint. He stated that he told the HR Director that: staff should be dealt with in accordance with company procedure; that staff were being harassed by email; and that he took issue with being on lay-off without an end-date. The Complainant outlined that he did not make a complaint in writing. He confirmed that he was familiar with the Respondent’s grievance procedure and that he did not invoke it. The Complainant outlined that he did not complain about his selection for redundancy. The Complainant outlined that “redundancy was fine” and that his complaint was not that he was considered for redundancy. He took issue with the process not being done correctly and people “left hanging on”. He said that he did not want to apply for redundancy and forfeit notice if the Respondent was making him redundant. He also said that he believed that he was forced into redundancy and that he had no choice.

The Complainant emailed the Respondent looking for an update on 10 March 2023, 16 March 2023 and 24 March 2023. On 27 March 2023, he received correspondence from the HR Partner, in which he was informed that his lay-off was extended for a further four weeks until 25 April 2023. He was also informed that he was at risk of redundancy.

The Complainant emailed the HR Director on 3 April 2023, stating that he wished to claim redundancy. On 4 April 2023, he emailed a copy of the RP9 Form to the Respondent. He stated that he later sent a copy of the RP77 to the Respondent. The Complainant outlined that he “had resigned” though the RP9 and the RP77.

The Complainant outlined that on 13 April 2023, the Area Manager role was advertised.

On 1 June 2023, he emailed the HR Director regarding the removal of his image from the Respondent website. On 15 June 2023, he emailed the HR Director regarding outstanding pay as well as pay for accrued annual leave.

On 23 June 2023, the Complainant was informed that the Examiner was in place and so he contacted the Examiner to deal with the pay matters.

In September / October 2023, the Complainant received a statutory redundancy payment of approximately €8,500. His last day of work was noted as 30 March 2023.

The Complainant outlined that he started working for “Iceland Foods.co.uk” in Dublin on 18 April 2023. He began in a warehouse and logistics role. Since 25 Oct 2024, he works in their EU distribution limited company, as an International Operations Manager.

There was no attendance by or on behalf of the Respondent.

In a letter from the WRC dated 28 January 2025, the Respondent was informed of the details of the Hearing to take place on 6 March 2025. The same letter also set out the procedure regarding postponement requests.

On 24 February 2025, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to attend or assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

The Law:

Constructive Dismissal:

The definition of dismissal at section 1 of the Unfair Dismissals Act 1977 – 2015 (the “Act”), includes the concept of constructive dismissal:

“dismissal, in relation to an employee means –

[…]

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer”.

The case of Western Excavations Ltd v. Colin John Sharp [1978] 1 All E.R. 713, which has been endorsed by the Labour Court, sets out the applicable legal tests for constructive dismissal. These tests are the "Contract Test” and the "Reasonableness Test". Both tests relate to the behaviour of the employer.

The “Contract Test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The “Reasonableness Test” is summarised as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v. Ulster Bank Ltd., UD 474/1981, where the EAT stated that the appellant:

“did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Redundancy:

Section 6(4) of the Act outlines instances where a dismissal is not deemed unfair:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Findings and Conclusion:

The Complainant’s evidence was uncontested. In his email to the Respondent dated 3 April 2023, the Complainant indicated: “Please take this mail as my intention to claim redundancy as per the redundancy payment act 1967-2007.” He then emailed his RP9 to the Respondent on 4 April 2023. The Complainant outlined that he “had resigned” though the RP9 and the RP77. The Complainant subsequently received his statutory redundancy payment of approximately €8,500 in September / October 2023. I note that the Complainant outlined that “redundancy was fine” but that he wanted the process to be done correctly. He also outlined that he believed that he was forced into redundancy. I note that he made no complaint in writing and that he did not invoke the grievance procedure. As set out above, pursuant to Conway v. Ulster Bank Ltd., UD 474/1981, the substantial utilisation of internal procedures is an essential element of succeeding in a claim of constructive dismissal.

Finally, I note that the Complainant applied for and received a statutory redundancy payment. In the circumstances, I find that the Complainant was not unfairly dismissed.

For the reasons set out above, I find that the Complainant was not unfairly dismissed.

Unfair Dismissals Acts 1977 – 2015, Constructive Dismissal, Redundancy.