Complainant

Respondent

Parties

Andrew  Moynihan

All Plast Engineering Ltd

Representatives

  Self - Represented

 Self - Represented

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-00068601-001

14/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016

CA-00068601-002

14/01/2025

The Complainant has lodged a case under the Unfair Dismissals Act, CA-00068601-001 and a case under the Paternity Leave and Benefit Act, CA-00068601-002. Having reviewed both of these claims, I find that it is appropriate to deal with CA-00068601-002 as part of the Complainant’s claim under the Unfair Dismissals Act.  

The Complainant states that he commenced employment as a general operative with the Respondent on 15 May 2023 and his employment was terminated on 1 August 2024. He states that he was informed at interview that he would be on a permanent contract once he passed his probation period.

The Complainant states that in May 2024, he was on a waiting list for a medical procedure; he states that the procedure did not go to plan and he was out of work for over 8 weeks as he was back and forth to hospital for further operations and numerous visits to his GP. He states that he had terrible pain and was hospitalised 4 times during an 8 week period in June and July 2024 with complications from the procedure.

The Complainant states that when he was returning to work, he was requested by the company to go to jobs in Sligo. The Complainant advised the Respondent that he would attend at Sligo but that his partner was due their baby and he informed them that he would have to leave site in order to return to Cork. The Complainant states that subsequently management informed him to attend at the workshop in Cork instead.

Following his return to work, the Complainant states that he completed an application form in order to avail of statutory paternity leave on Tuesday 30 July and he was subsequently approached on Thursday 1 August the same week by the Director of the Respondent company stating that work had gone quiet and he was being let go and would finish on Friday 9 August.  The Complainant states that he kept this information to himself because he was well aware work was not quiet and he was embarrassed. The Complainant asserts that the following day Friday 2 August, he was in work and most of the other employees were informed he was being let go so he emailed accounts division  to request the following week off as holidays as he was due annual leave.

The Complainant states that following his dismissal, he emailed the Respondent requesting reasons for being let go from the company.  The Complainant states that the Respondent issued him with a letter on 13 August 2024 claiming that he was being made temporarily redundant as opposed to being dismissed which the Complainant contends was a complete turnaround from what he was told verbally by the Director on 1 August.  

The Complainant states that he was subsequently on job seekers but that he was anxious to look for employment as he had a family relying on him. He emailed the Respondent requesting his training certificates and that his annual leave/holiday entitled be paid.

The Complainant states that while the Respondent maintains that he was let go due to a downturn in business, he subsequently became aware of three other persons being employed by the Respondent at this juncture who were hired in the general operative role.

The Complainant states that he was never in any trouble nor were any issues brought to his attention regarding his performance. He states that he provided the relevant doctor certificates with regard to his illness and certificates from the hospital when he was out sick in June/July 2024. The Complainant states that he left another job in order to come work for the Respondent. He states that he has been very unfairly treated by the Respondent and experienced a lot of stress at this time due to the Respondent’s actions.

In conclusion, the Complainant states that he was unfairly dismissed. He asserts that he had to undergo a medical operation and it took longer than expected to recuperate and be in a position to return to work. The Complainant states that this issue in tandem with him exercising his right to avail of paternity leave resulted in his unfair dismissal from employment.

The Complainant reiterates that he was informed on 1 August that he was being let go due to a downturn in business. Subsequently he sought advice; thereafter he emailed the Respondent requesting reasons for being let go and indicated that he was pursuing a case of unfair dismissal to the WRC. The Complainant asserts that the Respondent then changed its position and stated in an email to the Complainant dated 13 August that he was made temporarily redundant.

The Complainant states that he was out of work for 9 months. He states that he made huge efforts to seek alternative employment, completed job application forms and underwent interviews but to no avail, however he has sourced alternative work recently which commenced on 6 May albeit at a lower rate of pay than he was earning at the Respondent company.

The Respondent states that the Complainant commenced employment with the company on 15 May  2023. It states that the Respondent’s business specialises in thermo plastic. The Director of the Respondent states that the Complainant and another employee were let go due to a downturn in business. He stated that work had slowed down and having spoken to his accountant he would have to reduce the labour force but that it would only be a temporary measure.

The Director states that he spoke to the Complainant on 1 August 2024 and verbally informed him of the necessity to reduce staff due to decreasing workload and projects coming to an end. The Director states that it was made clear to the Complainant that hopefully this would be a temporary measure. The Director stated that the Complainant requested to take holidays he had due to him in respect of the week ending 9 August.

The Respondent states that the Complainant subsequently e-mailed the company requesting that all of his training records be returned to him.

The Respondent states that the turnover for 6 months ending in 31 July 2025 was significantly reduced with that for the corresponding 6 month period ending 31 July 2024. The Director states that this was due to a reduction in the number of contracts awarded to the company.     

In relation to the Complainant’s application for paternity leave, the Director states that this form was completed by the relevant HR representative of the company on 30 July 2024 and he cannot understand how the Complainant claims that the Respondent denied him his paternity leave.  

Law

Unfair Dismissal

The Unfair Dismissal Acts 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the 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.

Section 6(1) of the Acts provides:

“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(6) of the Acts provides:

“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.”

The Labour Court in Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski (UDD2338) noted:

“There can be no absolute rules about what is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

Generally a person is dismissed when the employer informs the employee clearly and explicitly that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Desmond Ryan, Redmond on Dismissal Law (3rd ed., Bloomsbury Professional, 2017) at 22.13].  Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker (Devaney v DNT Distribution Company Ltd, UD 412/1993). In Devaney the Employment Appeals Tribunal (EAT) stated:

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In Parkboro Developments the Labour Court stated that where dismissal was not intended, it is up to an employer “. . . to take immediate and comprehensive steps to assure the Complainant otherwise”.

Section 6(7) of the Acts provides:

“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, and (b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

Section 7(1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) 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 . . . . ”

Section 7(2) provides:

“Without prejudice to the generality of subsection (1) of this section, 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.

Section 7(3) provides “within this section— “financial loss”, 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 1973, or in relation to superannuation”.

The extent of the efforts required to mitigate one’s loss was considered by the court in Synergy Security Solutions v Paul Dusa (UDD1911). In Sheehan v Continental Administration Co Limited (UD 858/1999), the EAT set out a reasonable standard test to be applied when assessing if the Complainant mitigated their loss:

‘‘A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”.

An employee must not unreasonably restrict his or her search solely within a narrow discipline and physical area and must be open to finding work in a broader sphere and within reasonable distance.

Lay-off

For the purposes of the Redundancy Payments Acts 1967-2022, lay-off is defined at s 11(1) as follows:

“Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off”.

Findings

The fact of dismissal is in dispute in this case. It is the Complainant’s case that he was informed on 1 August by the Director of the Respondent that he was being let go due to a downturn in business.  It is the Respondent’s case that the Complainant was informed on 1 August that he was being made temporarily redundant.

Where dismissal is in dispute, the initial burden rests with the Complainant to establish facts from which an Adjudication Officer can determine that a dismissal has occurred. I must decide whether the Complainant could reasonably and objectively understand himself to have been dismissed within the meaning of s 1(a) of the Acts as he alleges on 1 August 2024 when he met with the Director of the Respondent and, relatedly, whether the Respondent intended to bring the contract of employment to an end by way of dismissal on that date. If I find that the Complainant was dismissed, I must then consider if there were substantial grounds justifying the dismissal.

I find as fact, for the reasons set out below, that the Complainant was unfairly dismissed by the Respondent.

It is the Complainant’s case that he was dismissed on 1 August 2024 following a meeting with the Director who stated that work was gone quiet and he had to let the Complainant go. It is the Respondent’s case that the Complainant was told on 1 August that he was being made temporarily redundant. Having heard the evidence on this matter, I prefer the testimony of the Complainant as I found him to be a cogent and credible witness. I found that there were inconsistencies in the evidence presented by the Respondent at the hearing.  

Based on the evidence heard, I find that the words “temporary redundancy” were not used by the Respondent until 13 August 2024 following correspondence issued to the Respondent by the Complainant expressing concerns that he had been unfairly dismissed. In my view, it is evident that the Respondent had changed its position due to the Complainant asserting his rights and in circumstances where the Complainant had indicated that he was considering pursuing the matter to the WRC under the unfair dismissal’s legislation.

I am cognisant that when a lay-off is being put into effect, the employer is required to give the affected employees a notice in writing stating that the cessation in employment is temporary. There is also an onus on an employer in such a situation to examine the possibility of placing the employee on reduced hours which did not occur in the within matter.    

Having heard the entirety of the evidence, I conclude that the Complainant could reasonably and objectively understand himself to have been dismissed on 1 August 2024; that the Respondent did, on the balance of probability, intend to dismiss the Complainant on 1 August 2024; and that there were no substantial grounds justifying the dismissal.

I accept the testimony of the Complainant wherein he stated that due to his absence on sick leave on medical grounds for over 8 weeks in June/July 2024 together with his application for paternity leave on his return from same, that these elements were a significant influencing factor`in the decision by the Respondent to terminate his employment. The Complainant stated that although the Respondent asserted there was a downturn in business at this juncture, he is aware of three other employees being hired at this time.

I am satisfied that the Complainant has demonstrated that he was unfairly dismissed by the Respondent.

The Complainant has sought an award of compensation as the means of redress in this case.At the point of termination of employment the Complainant was earning €628.70 weekly.

I must evaluate the efforts made by the Complainant to mitigate his loss. The Complainant stated that he was unable to source alternative employment until May 2025, 9 months following his dismissal. I find that the Complainant could have made greater efforts to mitigate his loss in line with the caselaw in Synergy Security Solutions v Paul Dusa (UDD1911) and Sheehan v Continental Administration Co Limited (UD 858/1999), which sets out a reasonable standard test to be applied when assessing if a person has mitigated their loss.

Taking all the facts into consideration, I award the Complainant compensation in the amount of €12,574 which I find is just and equitable in all the circumstances.

I find that the Complainant was unfairly dismissed by the Respondent. I award the Complainant compensation in the amount of €12,574.

Unfair Dismissals Act, Paternity leave and Benefit Act, dismissal in dispute