ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050360 conjoined with ADJ 46672 and 49934

Parties:

Complaints:

Date of Adjudication Hearing:  04/02/2025

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

Procedure:

In accordance Section 39 of the Redundancy Payments Acts 1967 - 2014 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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.

Background:

Summary of Respondents’ Case:

Summary of Complainants’ Case:

Findings and Conclusions:

I have been requested to reach a Decision in the claim for unfair dismissal and a claim for an incomplete payment in Redundancy lump sum.

In reaching my decisions, I have had regard for the written submissions and oral evidence adduced at hearing.

In the event of Mr Foleys claim for unfair dismissal being upheld, he has elected for the option of re-instatement at the Respondent business. When canvassed on this plea, the Respondent contends that there is simply no way back and the Adjudicator should look carefully at the sequence of events, where the severance payment on offer which comprised an inflated redundancy payment, was not vetoed in principle but failed to progress due to exclusion of the lunch money from the base calculations on quantum.

The Respondent has disputed that an animus existed between Mr Foley and the business which caused his dismissal through submission of protected disclosures.

It is noticeably clear to me that the Complainant has a clear floor plan to return to the business through law. He has not sourced new work and has returned to studying human resources. I understand his historical commitment to his position, and he is genuine in his disappointment at how his employment ended prematurely.

As I had stated previously, I had intended to have these nine linked Decisions completed by the end of June 2025. In my deliberations, post hearing, I required time to apply some extended consideration to the points both parties made at hearing. That is the reason for my delay.

Earlier this week, I was notified that the Complainant was seeking the three linked 9 Decisions. As the parties came to hearing legally represented, I returned this email to those sources.

However, I noted that Mr Foley seems to have returned to an earlier Union position which occurred in the aftermath of his dismissal, and one addressed through the WRC Conciliation and Adjudication service.

    We are concerned by the delay as our statute of limitation for strike to get jobs back is limited to mid-October. looking forward to your reply

I responded saying I would issue the linked decisions in due course in line with the Parties / WRC Agreement for simultaneous release. I deserve that requested space.

I have also responded to a cumulative three Parliamentary Questions from Mr Foleys public representative. I restated the Agreement made by the Parties at hearing and refused to be rushed in my decision making.

Given that I received assurances from the Complainants nominated representatives that communication would issue from that source alone, I have found these extra -procedural approaches to be unusual of an independent decision maker.

 The claims before me are made in law and decisions issued on how I believe the law is applied to the evidence and facts revealed by the parties.

 WRC Adjudication on employment rights such as this case is a completely separate forum to WRC Adjudication / Conciliation / Mediation on IR matters.

This difference goes to the very epicentre of this claim for unfair dismissal.

I have already explained the right of appeal open to Mr Foley.

Claim:

For now, I want to consider the claim for unfair dismissal submitted on 20 February 2024, which has been rejected by the Respondent.

The Complainant has not found new work and has returned to study. He seeks re-instatement.

The Law on Dismissal is contained in the Unfair Dismissals Act, 1977, as amended.

Section 1 defines Dismissal as:

“Dismissal,” in relation to an employee, means—

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Redundancy

“redundancy” means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971;

Section 6(1) determines that substantial grounds much underpin a redundancy.

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(2) (ba) places a dismissal “wholly or mainly “for protected disclosure reasons in a strict unfair dismissal category.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure,

Section 6(3) of the Act addresses the mechanisms surrounding the release of an employee through redundancy on how the process was conducted and whether it contravened an agreed procedure between Union/ Management

3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Section 6(4) provides a defence to the Respondent.

4) 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:

1. 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.

Section 6 (6) places the burden of proof on the Respondent to demonstrate that Dismissal occurred within the parameters of Section 6(4)

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6(7) permits me to explore the reasonableness of the conduct of the Respondent in demonstrating that they acted reasonably.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, 

Before I consider the facts as raised in this aspect of the case, I would like to once more reflect on the collision of both worlds in this case. That of the Union and that of the legal representatives.

It is open to any employee to choose a representative to assist in workplace issues. It is advisable to bring an advocate to assist in raising cogent arguments on terms and conditions.

SI 146/2000 and Burns and Hartigan v Governor of Castlerea Prison [2009] 20 ELR 109

  “Exceptional grounds necessary to permit legal representation “

 I would deem it essential to be represented during a redundancy situation, which may be a once only event in most people’s lives, but it is extremely technical in form and content. It can be life changing and words spoken can be traumatic and enduring.

The Complainant was a working longtime member of SIPTU at the time that Redundancy was first mentioned to the Union in his case in October 2023.

By then he had lodged his workplace complaints to both the WRC Inspectorate and WRC Adjudication, 19 December 2022, where he was legally represented. He had augmented these in August 2023.

It is common case that SIPTU walked through the news of “at risk of “redundancy and the efforts to maximise the severance package with the Complainant during November 2023 to date of dismissal 31 December 2023 and beyond to January 17, 2024, at least. I have read the correspondence which strove to build a maximum pot for Mr Foley by hitting all the unrealised goals of the employment.

The Complainants legal team were awaiting a date for hearing of the employment rights complaints during this period but strangely intervened with correspondence on seeking clarification of quantum in the severance during November 2023- December 2023.

Two worlds collided at that point, causing the Respondent to pause pending a declaration on just who was speaking for whom. The Union   emerged from that clarification up to and including execution of the January 2024 public picket in Tralee.

I listened to Mr Foley as told me that he had witnessed other Kerry group redundancies, where the pot was higher. I considered the 2002 Agreement which benefitted forty-one drivers. By 2006 Collective Agreement, this had fallen through attrition to twenty-two named drivers directly employed at the business.

By 2009 LCR 19437 introduced a Recommendation dated 20 January 2009.

“The Company’s proposals to rationalise the milk collection operations in co Kerry. Arising from the rationalisation plan the company proposed to reduce the number of milk assembly drivers from 20 to 8 and source out the work to independent hauliers with effect from 31 January 2009.”

1 voluntary severance 6 weeks per year of service inclusive of any statutory redundancy payments plus a lump sum of €7,500 for those drivers affected by the proposed rationalisation plan.

2 If insufficient uptake, LIFO

3 flexibilities for remnant workforce under 2002 agreement followed by a review after 12 months.

This is a clear undisputed account of a radical change era for drivers at the business 2002-2009 and beyond.

I heard extensive evidence from all presents at hearing that seismic change followed 2010 -2023 on how milk collection was undertaken, where tankers increased in size and tachographs were commissioned but not obligatory for drivers.

I heard the complainant when he said he was often held up in a wait queue in the factory settings which was an irritant for him.

 Mr Foley demonstrated a restlessness regarding how he had been cast by the company as he contended that the pressure placed on him to take breaks was to mask a correct capturing of the annualised hours. He was defiant on being excluded from accessing enhanced benefits linked to salaried workers. Crucially, he had not sought a clarification from the Labour Court on that aspect of his dissent.

A Union claim on foot of LCR Rec 22429 in April / May 2022 had not left ground floor level and was awaiting feedback from an anomalous claim in Listowel.

I can see that Mr Foley was very much at a crossroads at where he fitted at the business.

The 2021 grievance read to me as a deep unease with his haulier colleague with whom he shared his “geographical area of responsibility “Mr Foley described himself as being “the sitting driver “. He also expressed a sense of unease on instructions issued by his line manager.

 The grievance was not processed onwards within a dispute resolution framework and was left to fester as offers of mediation were not trialled.

The Respondent has certainly demonstrated through Mr Dillane’s evidence that a growing exasperation or indeed frustration had evolved regarding interpretation of how and where breaks should be taken and recorded. However, no disciplinary action commenced in 2022/2023 when Mr Foley, having taken legal advice ceased recording his breaks.

 I heard Mr Dillane confirm release of working time records directly on Mr foleys request in 2021. This for me signalled a business-like exchange.

. The Complainant was in good standing at the business and without disciplinary sanction at the time of his dismissal. However, I accept he was vulnerable as one of the last remaining 7 drivers in Kerry LCR 22429. I also accept that he did not appreciate that.

 He did have a period of sick leave during 2023.

 However, against this multi-faceted background of change in numbers and operational units, I listened carefully as Mr Ryan challenged the complainant on his approach to the redundancy.

When the complainant indicated that “we (he Mr Cronin and Mr OConnor) were fine for redundancy, if it had been put right “it places this analysis right back into an IR world.

This is the complainant’s evidence for November – December 2023.

However, I have been asked to decide whether the complainant was unfairly dismissed through an alleged and choreographed redundancy.?

In Component Distributors (CD Ireland) ltd and Brigid Burns UDD 1854, the former Deputy Chair Caroline Jenkinson on behalf of the Labour Court explored the circumstances where a Credit Controller contested her dismissal when the company centralised the finance team north of the border from Dublin to Antrim, making her redundant Section 7(2) (a) of the Redundancy Payments Act 1967.

The Complainant had appealed the validity of her redundancy within the business but had not expanded on it. The appeal did not succeed.

The Court was satisfied that the complainant had been consulted on the redundancy, that she was provided with the rationale for redundancy and offered input in the process and an alternative. Legal representation or cross examination of management was not deemed necessary.

The Court was satisfied with the selection process adopted and accepted that the Dismissal was wholly redundancy connected and not unfair.

I gained some insight from Mr O’Connell’s evidence as he described that the Respondent no longer employed drivers of milk tanks, the change   had its roots in 2001 on the direction of 24/7 milk collection. He gave a credible account on how the business had decided to close off directly employed drivers of milk tanks over a 3-year lead in period. I appreciate this was a behind doors discussion.

I accept his evidence that the Respondent had decided to outsource the remainder of the work done by the seven drivers and their manager on 16 August 2023. It may well have assisted if the respondent had exhibited those group minutes as had occurred in Burns, where twenty staff were placed at risk of redundancy as a commercial decision on restructuring.

I am satisfied that this sensitive information was shared by the respondent with the complainant’s union with a request to meet but this was deferred until November 3. At this meeting, I accept Mr O’Connell’s evidence that he simply read out the announcement, not thinking for a minute that he would be an eventual participant in WRC on the topic.

I am satisfied that this was an announcement of “at risk of redundancy “for the cadre of seven drivers and that message was understood by all.

 While Ms Ocarroll was clear in her recollection that Mr foley asked to retain his job, he was informed that his job was gone, and it then became about figures with heated exchanges from that day forward.

I am satisfied that the Respondent made a commercial decision to conclude direct employment of milk tank drivers for what they described as the market norm of hauliers through service level agreement. I am satisfied that encompassed the seven drivers.

I accept Mr O Connells evidence that the complainant was offered an option to join the cadre of hauliers outside of the redundancy arrangements where he was to revert in 7 days. I also accept that Mr Foley was offered the option of redeployment as an employee to existing vacancies at the Respondent Factories, Stores, or fertiliser feeds but he did not engage on those options. This was disputed by Mr foley.

I accept that the complainant was not replaced in his role and his truck was sold.

I followed Ms O Carrolls evidence as she chronicled the IR negotiations which transpired before termination.

I can see that the Respondent understood that they had dug deep in resurrecting the historical Redundancy payment of 2009 in LCR 19437 which exceeded the 2023, 3.5 weeks norm. I find this was a two-stage process, voluntary uptake followed by LIFO. This placed the context as compulsory on round two and related to those proposals.

Crucially for me, this did not determine a collective agreement on how redundancies should be managed at the business.

I can see that the Union sought to “tweak the offer “in 2023. It was presented in a take it or leave it fashion and was required to be a full and final settlement which compromised the live employment rights cases. This was not palatable to the complainant and thus declined. I did ask Mr OConnell if this pot still existed in 2025? and was informed that there may be a possibility of this, but the complainant side did not respond to my scoping.

I have no idea why Mr Foleys plans to explore a clarification of the 2009 Labour Court IR Rec was not followed through.

I can see that the last apparent action of the Union, prior to dismissal was to notify of an escalation   of the dispute to protest for leverage. This ended when the Complainant decided to proceed with his claims to the WRC Adjudication as is his right to do.

 I must now move to explore.

1 Was there a genuine redundancy so as to establish substantial grounds for dismissal?

2 Was the method of selection fair?

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer?

I want to preface my findings to refer to the seminal work on a shrouded redundancy in business. This account reflects an understanding of just how difficult redundancy can be for everyone involved.

JVC Europe ltd v Panisi [2011 IEHC] 279

JUDGMENT of Mr. Justice Charleton

1. Redundancy can be a devastating blow. Where economic conditions are difficult, or where the employee who is let go has aged or is experiencing health difficulties, finding alternative employment may be impossible. Years of devotion to an employer count for nothing where technology overtakes the workforce, rendering the labour of those displaced unnecessary; where new methods of work are demanded from those who do not have the skills to respond; or where a product is rendered obsolete. All these are examples of genuine redundancy. As ordinarily understood, redundancy means that a worker is no longer needed. The legal definition, as stated in the legislation which I quote later, mirrors common comprehension. Because redundancy is inevitable if there is no work for workers to do and the workers cease to be needed, it is also lawful. The Redundancy Payments Act 1967, as amended, establishes a floor of rights in compensation for redundancy; circumscribes the use to which dismissal by reason of redundancy can be put; and provides for minimum payments for qualified employees who are subject to this misfortune. In circumstances of insolvency those payments can be met from the public purse.
2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended (*the Act of 1977*), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer.

Panisi found that a “dismissal can be constructed and presented as a redundancy “shrouded by an identifiable “cloak.”

  Charleton J. emphasised the need to look behind all the evidence in a case to arrive at an accurate finding in this exceedingly difficult area of employment law.

The burden of proof rests firmly on the Respondent in this case to prove the circumstances relied on in the defence of Section 6(4) (c).

The case of St Ledger and Frontline Distribution Ireland ltd [1995] ELR 160 sets a clear objective for a true redundancy.

That it should not be based on Mr Foley personally or his performance and it should reflect measurable and identifiable impersonality and change at the enterprise.

This case concerned a Warehouse Supervisor who was made redundant and replaced by a worker who the respondent contended was better trained.

The EAT held this was not a genuine redundancy as the statutory definition of redundancy had not been proved.

In the instant case, I have established that the redundancies which occurred on 31 December 2023 followed a company decision to finally cease the business model of directly employed drivers in favour of outsourcing via Service Level Agreement to match the 24/7 aim at milk collection. This had its seeds in 2002 and had manifested at the business at intervals from that year onwards. The Complainant did not complete night work.

Mr OConnor was the last direct hire in 1991. He was the Junior man amidst a series of sequential redundancies and retirements. I found a once off reference to proposals for redundancy or conversion in the 2002 Agreement not replicated later. This reflected a fallback position of employment continuance. Mr foley contended that this Agreement endured for 3 years, I find that it lingered on until 2023, but conversion was not explored by the complainant in December 2023.

I am satisfied that at risk of redundancy was the message presented to the Complainant /Union at the joint meetings on 3 and 9 November 2023.

Selection is a moot point as the entire cadre of remaining drivers and their line manager were placed at risk of redundancy.

I have resolved the conflict in evidence in terms of alternatives offered in favour of the respondent as I accept that the complainant was offered consideration of existing vacancies at the business that went untapped.

I also accept that the complainant was offered an opportunity to join the cadre of hauliers on a self-employed basis, albeit not in his own patch.

Consultation occurred, where the complainant was permitted input on his future inside the business, but elected to use that time to maximise the severance package without appealing the redundancy on validity grounds. I understand that and recognise that redundancy was foremost on his mind and wishing to do the best for him and his family.

The Respondent reached for the elevated terms of severance outside of the 3.5 weeks model (inclusive of statutory) to close the deal, incentivise acceptance and transition to the new model. It did not work, and a Dispute arose and was not resolved.

I would have liked to have seen a formal appeal process trialled here, but I have to accept that as the “two worlds “collided own more, the appeal took the form of an IR Dispute complete with protest.

Can the Respondents insistence on a compromise agreement which sought to compromise all live claims before the Respondent as a basis for withholding an ex-gratia payment be deemed unreasonable behaviour?

It is of note that all involved were professionally represented by their Union at that time. An opportunity for informed consent prevailed.

At the peril of repeating myself, once more this is where two worlds collided.

Mr Foley told the hearing; he would have accepted the redundancy if it had included a quantum on the lunch money. That for me equates with his plan to accept redundancy if the price was right and this action suggests proximity at least to acquiescence of his own dismissal.

I am at a loss to understanding whether it was the Union or the Legal advisors who intervened to halt the completion of the compromise Agreement as I don’t have supporting documentation to guide me in this , given it was not delineated in the Union memo of 15 December and later picked up in Ms O’Carroll’s  correspondence of 5 January 2024 when she stated .

“… we are aware that your members rejected this offer as they believe that their current cases before the WRC concerning working time are of greater value to the amount offered. These cases were assigned a hearing date of 31 January 2024 by the WRC but have since been cancelled “

Ms O Carroll then moved to reach out to Mr Foley when she wrote on the same date and in the face of imminent protest:

“We have instructed our legal advisors to contact (complainant’s solicitors) to suggest ways in which this hearing can be accelerated such as agreeing a time frame to exchange submissions and to narrow down any other issues in dispute “

I found this a reasonable and pragmatic approach within 7 days of the termination.

However, I must now look at the circumstances to establish whether the dismissal was wholly or mainly connected to redundancy in the legal sense as set out in

Section 7 (2) of the Redundancy Payments Act 1967?

2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if or one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

I find that by the time of the dismissal on 31 December 2023 , Section 7 ( 2) ( b ) and ( c)  of the Redundancy Payments Act , 1967 had transpired at the business  through complete  erosion of the cadre of directly employed drivers and their manager present since the 1990s in favour of the total provision of service by hauliers, who operated in a different way . The business no longer required directly employed drivers.

This had an overture to elements of the Irish Ferries Dispute in 2005, albeit on a much smaller scale. This involved large scale redundancies in favour of agency replacement. This was an IR Dispute eventually settled with the assistance the States Industrial Relations bodies.

In my consideration of the evidence in this case, my attention was drawn to a 1998 claim for a redundancy payment by a John Blade and Kerry Co -operative Dairies ltd RP 93/98 at EAT.

Mr Blade was a delivery man when the respondent took over his employment. Subsequently, he received details of a planned restructuring which sought to redeploy him to Galway via a mobility clause, which he vetoed.

He was also offered severance.

It was the respondent case that the mobility clause should defeat and undermine any claim to Redundancy.

The EAT found that the need for the number of drivers the respondent previously had in Tuam area had ceased or diminished and the complainant’s job which had been phased out and ceased.

Ms Faherty held that this was the language of redundancy.

She went on to find that the issue of mobility could not become a defining issue when redundancy had clearly occurred and found that the complainant was correct in considering himself dismissed on the circumstances which were not defeated by a mobility clause as suitable alternative.

For my part, I can safely conclude that there had been some tension in the employment relationship between Mr Foley and the Respondent for many years. However, this did not expand to animus or any apparent an attempt to antagonise the complainant by making him redundant.

I understand that the complainant genuinely believes that his complaints to the WRC sealed his fate, however, he has not proved this in evidence.

Protected Disclosure:

I am not at one with the Complainant when he sought to frame his claim for unfair dismissal against a protected disclosure submission to the WRC on 19 December 2022.

There was no mention of this on the WRC complaint form, where the narrative referred to a complaint.

 On that day he made one complaint regarding to WRC Inspection.

“My Employer is not keeping statutory records “He sought an investigation under the Organisation of Working time Act 1997.

On 5 April 2024, the WRC Inspectorate declared that records were maintained by a tachograph where the Road Safety Authority carried authority to inspect those records not WRC.

On 19 December 2022, four complaints were set out to WRC Adjudication (all addressed above)

I have no indication that the Complainant made a Protected disclosure in accordance with Section 5 of the Protected Disclosure Act 2014, as amended. (SI 510/2022)

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)]and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B,] 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker [in a work-related context].

The Complainant has submitted that the complaints raised constituted Protected Disclosures to Director General of WRC

I found no reportage through the company policy on Protected disclosures.

Given that Mr foley, as worker and shareholder had received a dossier of tachograph records 2021-2022 and had stopped recording rest time in his own case, it is safe to presume that he was in conflict with his employer.

I asked if these matters had been raised at shareholder meetings and there was no material evidence of this or a road safety authority report on compliance.

The complainant demonstrated an awareness of the role of the RSA in this regard.

I must conclude that these matters were interpersonal grievances exempted under section 5 A.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.]

The tension between the Respondent and the complainant was more of incredulity at the complainants perceived defiance as articulated by Mr Dillane in his evidence than a targeted personalised attack.

I found the Respondent to be practical in respect of the employment rights complaints rather than combative or reactive as attributed to them by the Complainant.

The bigger picture confirms that the Respondent completed the planned concluding chapter in the devolution of direct employment of drivers by entire cadre cessation on 31 December 2023. This amounted to a redundancy in law.

The cadre has not been replaced. The new system has been evaluated and endorsed at the company. The trucks have been sold. Third party contractors became the market norm.

A genuine redundancy occurred in the complainant’s case, and he participated in the shaping of the final stages of that process without appealing the principle of redundancy in law, at least.

I understand that he sought to safeguard his and his family’s future by seeking to secure an optimal severance.

Consultation occurred with the Union, but Mr Foley did not engage on the alternatives offered in house prior to the redundancy.

I found that universal selection from a final remnant pool of seven drivers of all drivers for redundancy was ambitious but was not unreasonable. They were the last Drivers standing, the final curve of the ball.

I could not identify a contravention in an existing agreement on how redundancies should operate at the business. Conversion, a remnant of an earlier Agreement was not trialled as the Dispute went public and then boomeranged back into the quasi-judicial forum of this Tribunal, where it has remained .

I would have liked to have seen a separate and parallel process which prefaced the complaints to the WRC on 19 December 2022 onwards. However, I cannot accept that by seeking to conclude a compromise agreement with represented parties that the respondent behaved unreasonably in seeking to safeguard their business which two worlds collided.

I must conclude that some tensions and fault lines were visible in the staff relations between Mr foley and various aspects of the business at line manager, haulier and marking time, however, I have not found this to be a defining issue in the face of a redundancy situation.

I have found that the Respondent can rely on the defence that the complainant was dismissed mainly by redundancy in accordance with section 6(4) (c) of the Act.

He was not unfairly dismissed.

CA-00061789-002 Incomplete lump sum in redundancy

I have considered both parties positions on this case and I did try to get the parties to collaborate on seeking to resolve this informally, without success.

The Complainant seeks a shortfall of €4895.00 in a lump sum payment in statutory redundancy.

I secured the complainants PRSI records 1988 -2023. There is a clear fragmentation in paid contributions and reliance on credited contributions 1988 to 2000. The issue between the parties is flagged as 1990 to 1992.

I can see from the Redundancy Payments Act 1967 that section 19 describes a payment of lump sum.

Payment of lump sum by employer.

19.— (1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or whereby virtue of section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.

(3) The Minister may by order amend Schedule 3.

A payment has been made in accordance with Schedule 3.

Other payments to employees from Redundancy Fund.

32.[(1) When an employee claims that an employer is liable to pay to him a lump sum under section 19 and that—

(a) the employee has taken all reasonable steps (other than legal proceedings) to obtain the payment of the lump sum from the employer and the employer has refused or failed to pay it or has paid part of it and has refused or failed to pay the balance,

 or

(b) the employer is insolvent and the whole or part of the lump sum remains unpaid, or

(c) the employer has died and neither probate of his will has, nor letters of administration in respect of his estate have, been granted, and the whole or part of the lump sum remains unpaid,

the employee may apply to the Minister for a payment under this section.

(2) If on an application under this section the Minister is satisfied that an employee is entitled to a lump sum under section 19 which remains unpaid either in whole or in part, the Minister shall pay to the employee out of the Social Insurance Fund  so much of the lump sum as remains unpaid.

(3) Upon the payment by the Minister of a payment under this section all rights and remedies of the employee with respect to the lump sum concerned or, if the Minister has paid part of it, with respect to that part, shall thereupon stand transferred to and become vested in the Minister and any moneys recovered by the Minister by virtue of this subsection shall be paid into the Social Insurance Fund.

The Minister appoints Deciding Officers for the purposes of the Act.

Deciding officers.

37.—The Minister may appoint such and so many persons as he thinks proper to be deciding officers for the purposes of this Act, and every person so appointed shall hold office as a deciding officer during the pleasure of the Minister.

Decisions by deciding officers.

38.— (1) Subject to this Act and in accordance with any relevant regulations, every question arising—

(a) as to who is the employer of an employee,

F83[(b) in relation to the payment from the Social Insurance Fund of—

(i) rebates to employers under section 29,

(ii) lump sums to employees under section 32, or

(iii) payments to employees under section 32A (6) in respect of certain lay-off periods during the period referred to in section 32A(1)(c),

or]

(c) on such other matters arising under this Act as are prescribed,

shall be decided by a deciding officer.

The figures regarding statutory and ex gratia were tabled by the Respondent to the Complainant during December 2023. I have not been provided with a challenge to those figures prior to the instant complaint before the WRC. I would have expected the parties to engage on this much sooner, but perhaps it got lost in the Dispute that followed in January 2024? I understand that the sum was initiated by the respondent and the complainant did not make application for redundancy.

In this case , this claim is not live in the ordinary courts ( legal proceedings ) and I find that Section 32 of the Act should be activated in the first instance given the clear and detailed depository of records at DSP , that must be the domain of the Deciding Officer in the first instance .

I decline jurisdiction on this account.

Decision:

Dated:   1st September 2025

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

Key Words: