ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00056918
Parties:
| Complainant | Respondent |
Parties | John Barry | Sonnervale Ltd |
Representatives | Barry Kenny Kenny Sullivan |
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Complaints:
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-00069214-001 | 11/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00069214-002 | 11/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00069214-003 | 11/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00069214-004 | 11/02/2025 |
Date of Adjudication Hearing: 16/02/2026
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the UnfairDismissals Acts, 1977 - 2015 following the referral of the complaint 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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions from parties were received including additional submissions, they were exchanged and I have considered all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing. The complainant gave evidence under affirmation and Mr Jason Enright, Director gave evidence under affirmation for the respondent.
Background:
The complainant submits that his dismissal was unfair, that an incorrect redundancy payment was made, that he did not receive statement of his terms of employment and that he did not receive minimum notice.
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Summary of Respondent’s Case: CA-00069214-001
The complainant gave his notice to resign on 21/12/2021 and had previously resigned October 2021. He was asked by Mr A “would u consider staying on for another while as u no we are under staffed at the moment…we always looked after u even win we left all the other boys go we kept u on have a think about it the weekend thanks” [sic] Later the respondent exchanged messages including that they were sorry to see him go and wished him a merry Christmas and the complainant replied “thanks a lot[sic] …, must track down a job now” and the respondent said “We should have a chat in the new year” to which the complainant said he appreciated that and for the respondent to contact him when they were ready. Well …thanks for taking the time to chat today. My van wont b sorted till Friday as mechanic waiting on water pump. I will b in Monday if that’s ok” and he had been asked back and agreed. It was the respondent’s understanding that the complainant asked for his job back on 04/01/2022 and the respondent agreed the complainant could work with a different foreman and while the company had returned on 03/01/2022 the complainant did not return until 12/01/2022.
The respondent submitted that all the complainant’s terms and conditions had been agreed verbally and he knew them and suffered no detriment by not having a written contract.
The complainant’s first employment was as scaffolder and general operative on a housing construction site. His second employment was a general operative and decorator and the complainant’s role as scaffolder had been replaced with outside contractor when he resigned his position in 2021. The complainant was given notice based on his employment commencing from January 2022 and not January 2018. The complainant and another employee were made redundant and not replaced. The complainant’s redundancy payment was available and he choose not to accept it and it is available to him.
Evidence of Mr Jason Enrigh Director The complainant resigned December 2021 and he had been told by his father who had dealt with the complainant that he had replied to the complainant’s resignation out of politeness and then the complainant asked for his position back and the work in the new position was different and he was let go and staff reduced. He had previously worked doing scaffolding but did not in the new role.
CROSS EXAMINATION OF MR JASON ENRIGHT: The complainant’s terms were not written down and he was experienced in construction and scaffolding and had his certs and he was going to resign at Christmas and he did not know if he was asked to withdraw his resignation and it was a new position in the company that he took up with the same pay. The site opened on 03/01/2022 and the complainant had said he wanted a job back and there was verbal consultation and nothing to consult on and there was no alternative. The respondent looked for work for him as much as they could. There is a portfolio of property and he had been on different projects and there was no more work. There was no consideration of lay off as there was no need for scaffolding. One of those kept on after him had longer service and one had machine operation skills and there are 3 employees at the moment 2 specialised and 1 assistant to the carpenter. |
Summary of Complainant’s Case: CA-00069214-001
It was submitted that the complainant is an experienced construction worker who commenced employment on 29/01/2018. In Christmas 2021 the complainant was having difficulties with the foreman including safety concerns around covid. The respondent was taking a break over Christmas and the complainant sent a text message saying he was finishing up on the last day before the Christmas break of 21/12/2021 and Mr A Director requested a meeting with him asking him to withdraw the notice on 04/01/2022 and that the complainant could work with another foreman and the complainant continued working with the company from 12/01/2022. On 17/01/2025 the complainant received a letter saying that the project he was working on had come to an end and there was no other work available and he would be made redundant on 31/01/2025 and would be paid holiday and redundancy and the complainant would not accept this redundancy and has received no redundancy.
The complainant received a letter on 17/01/2025 without prior consultation of any redundancy and which confirmed a decision had already been made. The decision was based on projects coming to an end. There was no alternative to redundancy proposed, no reasons given, no consultation, no fair selection criteria used and no evidence that completion of a project necessitated the redundancy of the complainant and the complainant was not afforded opportunity to appeal. The complainant worked for a period of time after termination which was unsuitable and then had a knee replacement and has not worked since on the advice of his doctor.
It was submitted that the complainant never received written terms of employment and did not get an appropriate redundancy payment. The complainant submits his start date is 29/01/2018 and not 12/01/2022 as submitted by the respondent.
The complainant submits he did not get appropriate minimum notice based on his service from 2018 and not 2022.
Case law cited included Martin v Yeoman Aggregates Ltd ,Shinkwin v Donna Millett, Kenny v Tegral Building Products Ltd [2006] 1JIEC1601, mulligan vJ2Global (Ireland) Ltd, O’Driscoll v CIL Precision [2011] 22 ELR68
COMPLAINANT’S EVIDENCE: The complainant said that before employment with the respondent he built houses and started working with respondent in January 2018. He’s qualified in scaffolding and did house maintenance, labouring and cleaning and never got terms of employment from the respondent. He got paid €685.73 and a payment of €1,920 at Christmas. In 2021 at Christmas the respondent closed the Thurs or Fri before Christmas and opened after New Years. This was during covid and he was looking for updated scaffold and the respondent was shutting down 2 or 3 times during covid owing to health and safety. The complainant told the respondent he could not do it any longer with his health and safety concerns and told them by message.
“well …hope all is well. As u know reluctantly I am finishing up today. I want to thank u and your family for everything over the past nearly 5 years and I wish you health and best of luck for Christmas and the future”.
and he meant by this he could not carry on and hoped he would not have to leave and the boss would help and he told the boss “thanks must track down a job” and Mr A said “we should have a chat in the new year”. Then Mr A phoned him in the new year and said the complainant could go work doing maintenance instead which the complainant was happy with and Mr A said they would meet on 04/01/2022 and work with a different foreman. Mr A wanted him to start the following day on 05/01/2022 but he told him he would start 12/01/2022. Everything stayed the same as previously with his pay and terms except he was not doing scaffolding anymore. The letter on 17/01/2025 was a shock and they were told on the Monday they would be gone Friday as work was coming to an end. He had no input into the redundancy process, no alternative to redundancy, nothing was said about deploying him to another site. He would have worked anywhere and did not know what ‘programme of works’ referred to in the letter meant and there were other houses he could have worked on. The complainant felt he was selected because of age and there was no opportunity to appeal. He was just given 2 weeks notice and not given the right redundancy and after work he finished and worked for a company for 7 weeks which did not suit him and looked for work and then had surgery and his specialist says he should not go back working with his knee issue.
CROSS EXAMINATION OF COMPLAINANT He said in 2021 he was not able to work anymore with the covid challenges and that there was one other made redundant in 2025. He did not have a pay slip and it seemed the figure of €1,920.04 was holidays and week in hand. He had previously given his notice in 2021. When the respondent made him redundant he was six months out of work and got 3 job offers, 2 which were far away. He was the second longest serving employee, there from the 2018 start date and with the 2022 start date he still had longer service than some who remained.
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Findings and Conclusions: CA-00069214-001
The complainant submits that he was unfairly dismissed. The respondent submits that his dismissal was because of redundancy and therefore the dismissal was fair. 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. … (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. (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: (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 …. (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.
The complainant’s evidence was that it came as a surprise to be advised that his position was redundant and there was no consultation regarding this. Mr Enright submits that projects were stalled and it was unfortunate but they had to let the complainant go and they only have 3 employees remaining
The start date of the complainant was in dispute and the respondent submits that the complainant commenced on 12/01/2022 with the complainant submitting the complainant commenced on 29/01/2018 and it was not in dispute that the employment ended on 31/01/2025. It was not in dispute that when employed in 2018 the complainant worked as a scaffolder and when working in 2022 the complainant worked in the main doing labouring and maintenance and his rate of pay did not change. It was not in dispute that the complainant resigned his position 21/12/2021 and he gave evidence that he was unhappy with some aspects of the role and it was noted that his message to the respondent outlines that he was “reluctantly” finishing up work.
The exchange of messages between the parties appears cordial and when the complainant advised that he was looking for work Mr A replied they “should have a chat in the new year” to which the complainant replied that he appreciated that and awaited the respondent to contact him. This would suggest that the communication remained cordial and that the complainant was awaiting contact from the respondent and when the respondent then shortly after contacted the complainant the complainant thanked him and advised that he would be working on 12/01/2022. . In Martin v Yeoman Aggregates Ltd [1983] IRLR 48- the EAT found “It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference”.
The complainant’s resignation in December 2021 did not appear to have been a resignation arising from a heated exchange, however, the words of the resignation clearly outline that the complainant was making the decision “reluctantly”.
In Millett -v- Shinkwin DEE2004ELR319 the Labour Court set out the “general rule” that “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract” The Labour Court in Shinkwin also referenced Keane v Western Health Board (UD 940/1988) wherebythe complainant was unaware of the existence of a procedure to process grievances. In this instant case the complainant did not appear to have been provided with a formal grievance procedure.
Mr A who had engaged with the complainant in the exchange of messages in 2021/2022 did not attend to give evidence and I have the complainant’s evidence under affirmation and the complainant’s evidence appears credible taking into consideration the exchange of messages and the short period of time before the complainant recommenced working following a discussions with the respondent. I note therefore, that the resignation was withdrawn which was accepted by the respondent and that the complainant’s start date, therefore is 29/01/2018.
The complainant’s employment thereafter appeared uneventful until he received a letter on 17/01/2025 advising that “given that the programme of works is coming to an end over the coming weeks, we wish to inform you that we have to make you redundant on Friday the 31st of January 2025”.
There was no consultation or engagement or discussions around why the complainant was selected, the complainant was not afforded the right to have someone present at a meeting and no appeal process. It would appear based on the evidence that a redundancy arose and the employment of another employees was terminated and those retained appeared to have a different skill set to the complainant but there was the absence of any fair procedures and as set out in UDD1726 Students Union Commercial Services Ltd v Alan Traynor there was no consideration or engagement of alternatives and what arose was a redundancy that was procedurally unfair set out also in UDD 1638 Tolerance Technologies Ltd v Joe Foran.
Redress for unfair dismissal. 7.—(1) 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) (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, or (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,
In all the circumstances having considered redress, I find compensation the appropriate redress and note the complainant secured employment for a limited period of time and then underwent surgery and is unable to resume work in a similar capacity since his surgery. The complainant, as set out in Sheehan v Continental Administration Co Ltd. 858/1999, “who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather time to be profitably employed in seeking to mitigate his loss”.
In all the circumstances I find that the dismissal of the complainant was procedurally unfair and the complainant did not make sufficient efforts to mitigate his loss and I award him €1,500 gross which I find fair and reasonable. |
Complainant’s Case: CA-00069214-002
It was submitted that the complainant is an experienced construction worker who commenced employment on 29/01/2018. In Christmas 2021 the complainant was having difficulties with the foreman including safety concerns around covid. The respondent was taking a break over Christmas and the complainant sent a text message saying he was finishing up on the last day before the Christmas break of 21/12/2021 and Mr A Director requested a meeting with him asking him to withdraw the notice on 04/01/2022 and that the complainant could work with another foreman and the complainant continued working with the company from 12/01/2022. On 17/01/2025 the complainant received a letter saying that the project he was working on had come to an end and there was no other work available and he would be made redundant on 31/01/2025 and would be paid holiday and redundancy and the complainant would not accept this redundancy and has received no redundancy.
The complainant received a letter on 17/01/2025 without prior consultation of any redundancy and which confirmed a decision had already been made. The decision was based on projects coming to an end. There was no alternative to redundancy proposed, no reasons given, no consultation, no fair selection criteria used and no evidence that completion of a project necessitated the redundancy of the complainant and the complainant was not afforded opportunity to appeal. The complainant worked for a period of time after termination which was unsuitable and then had a knee replacement and has not worked since on the advice of his doctor.
It was submitted that the complainant never received written terms of employment and did not get an appropriate redundancy payment. The complainant submits his start date is 29/01/2018 and not 12/01/2022 as submitted by the respondent.
The complainant submits he did not get appropriate minimum notice based on his service from 2018 and not 2022.
Case law cited included Martin v Yeoman Aggregates Ltd , Shinkwin v Donna Millett, Kenny v Tegral Building Products Ltd [2006] 1JIEC1601, mulligan vJ2Global (Ireland) Ltd, O’Driscoll v CIL Precision [2011] 22 ELR68
COMPLAINANT’S EVIDENCE: The complainant said that before employment with the respondent he built houses and started working with respondent in January 2018. He’s qualified in scaffolding and did house maintenance, labouring and cleaning and never got terms of employment from the respondent. He got paid €685.73 and a payment of €1,920 at Christmas. In 2021 at Christmas the respondent closed the Thurs or Fri before Christmas and opened after New Years. This was during covid and he was looking for updated scaffold and the respondent was shutting down 2 or 3 times during covid owing to health and safety. The complainant told the respondent he could not do it any longer with his health and safety concerns and told them by message.
“well …hope all is well. As u know reluctantly I am finishing up today. I want to thank u and your family for everything over the past nearly 5 years and I wish you health and best of luck for Christmas and the future”.
and he meant by this he could not carry on and hoped he would not have to leave and the boss would help and he told the boss “thanks must track down a job” and Mr A said “we should have a chat in the new year”. Then Mr A phoned him in the new year and said the complainant could go work doing maintenance instead which the complainant was happy with and Mr A said they would meet on 04/01/2022 and work with a different foreman. Mr A wanted him to start the following day on 05/01/2022 but he told him he would start 12/01/2022. Everything stayed the same as previously with his pay and terms except he was not doing scaffolding anymore. The letter on 17/01/2025 was a shock and they were told on the Monday they would be gone Friday as work was coming to an end. He had no input into the redundancy process, no alternative to redundancy, nothing was said about deploying him to another site. He would have worked anywhere and did not know what ‘programme of works’ referred to in the letter meant and there were other houses he could have worked on. The complainant felt he was selected because of age and there was no opportunity to appeal. He was just given 2 weeks notice and not given the right redundancy and after work he finished and worked for a company for 7 weeks which did not suit him and looked for work and then had surgery and his specialist says he should not go back working with his knee issue.
CROSS EXAMINATION OF COMPLAINANT He said in 2021 he was not able to work anymore with the covid challenges and that there was one other made redundant in 2025. He did not have a pay slip and it seemed the figure of €1,920.04 was holidays and week in hand. He had previously given his notice in 2021. When the respondent made him redundant he was six months out of work and got 3 job offers, 2 which were far away. He was the second longest serving employee, there from the 2018 start date and with the 2022 start date he still had longer service than some who remained.
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Summary of Respondent’s Case: CA-00069214-002
The complainant gave his notice to resign on 21/12/2021 and had previously resigned October 2021. He was asked by Mr A “would u consider staying on for another while as u no we are under staffed at the moment…we always looked after u even win we left all the other boys go we kept u on have a think about it the weekend thanks” [sic] Later the respondent exchanged messages including that they were sorry to see him go and wished him a merry Christmas and the complainant replied “thanks a lot[sic] …, must track down a job now” and the respondent said “We should have a chat in the new year” to which the complainant said he appreciated that and for the respondent to contact him when they were ready. Well …thanks for taking the time to chat today. My van wont b sorted till Friday as mechanic waiting on water pump. I will b in Monday if that’s ok” and he had been asked back and agreed. It was the respondent’s understanding that the complainant asked for his job back on 04/01/2022 and the respondent agreed the complainant could work with a different foreman and while the company had returned on 03/01/2022 the complainant did not return until 12/01/2022.
The respondent submitted that all the complainant’s terms and conditions had been agreed verbally and he knew them and suffered no detriment by not having a written contract.
The complainant’s first employment was as scaffolder and general operative on a housing construction site. His second employment was a general operative and decorator and the complainant’s role as scaffolder had been replaced with outside contractor when he resigned his position in 2021. The complainant was given notice based on his employment commencing from January 2022 and not January 2018. The complainant and another employee were made redundant and not replaced. The complainant’s redundancy payment was available and he choose not to accept it and it is available to him.
Evidence of Mr Jason Enrigh Director The complainant resigned December 2021 and he had been told by his father who had dealt with the complainant that he had replied to the complainant’s resignation out of politeness and then the complainant asked for his position back and the work in the new position was different and he was let go and staff reduced. He had previously worked doing scaffolding but did not in the new role.
CROSS EXAMINATION OF MR JASON ENRIGHT: The complainant’s terms were not written down and he was experienced in construction and scaffolding and had his certs and he was going to resign at Christmas and he did not know if he was asked to withdraw his resignation and it was a new position in the company that he took up with the same pay. The site opened on 03/01/2022 and the complainant had said he wanted a job back and there was verbal consultation and nothing to consult on and there was no alternative. The respondent looked for work for him as much as they could. There is a portfolio of property and he had been on different projects and there was no more work. There was no consideration of lay off as there was no need for scaffolding. One of those kept on after him had longer service and one had machine operation skills and there are 3 employees at the moment 2 specialised and 1 assistant to the carpenter. |
Findings and Conclusions: CA-00069214-002
The complainant submits that he did not receive redundancy payment and the redundancy payment offered by the respondent does not reflect his length of service since 29/01/2018. The respondent submits that the complainant was offered his redundancy but did not accept the redundancy payment which is based on his length of service since 12/01/2022.
I have found in CA-00069214-001 the complainant’s start date was 29/01/2018 and Section 7 provides for General right to redundancy payment. 7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided— (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date. (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for 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…
Taking into consideration all the submissions and evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:
Date of Commencement: 29/01/2018 Date of Termination: 31/01/2025 Gross Weekly Pay: €685.73 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.
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Complainant’s Case: CA-00069214-003
It was submitted that the complainant is an experienced construction worker who commenced employment on 29/01/2018. In Christmas 2021 the complainant was having difficulties with the foreman including safety concerns around covid. The respondent was taking a break over Christmas and the complainant sent a text message saying he was finishing up on the last day before the Christmas break of 21/12/2021 and Mr A Director requested a meeting with him asking him to withdraw the notice on 04/01/2022 and that the complainant could work with another foreman and the complainant continued working with the company from 12/01/2022. On 17/01/2025 the complainant received a letter saying that the project he was working on had come to an end and there was no other work available and he would be made redundant on 31/01/2025 and would be paid holiday and redundancy and the complainant would not accept this redundancy and has received no redundancy.
The complainant received a letter on 17/01/2025 without prior consultation of any redundancy and which confirmed a decision had already been made. The decision was based on projects coming to an end. There was no alternative to redundancy proposed, no reasons given, no consultation, no fair selection criteria used and no evidence that completion of a project necessitated the redundancy of the complainant and the complainant was not afforded opportunity to appeal. The complainant worked for a period of time after termination which was unsuitable and then had a knee replacement and has not worked since on the advice of his doctor.
It was submitted that the complainant never received written terms of employment and did not get an appropriate redundancy payment. The complainant submits his start date is 29/01/2018 and not 12/01/2022 as submitted by the respondent.
The complainant submits he did not get appropriate minimum notice based on his service from 2018 and not 2022.
Case law cited included Martin v Yeoman Aggregates Ltd, Shinkwin v Donna Millett, Kenny v Tegral Building Products Ltd [2006] 1JIEC1601, mulligan vJ2Global (Ireland) Ltd, O’Driscoll v CIL Precision [2011] 22 ELR68
COMPLAINANT’S EVIDENCE: The complainant said that before employment with the respondent he built houses and started working with respondent in January 2018. He’s qualified in scaffolding and did house maintenance, labouring and cleaning and never got terms of employment from the respondent. He got paid €685.73 and a payment of €1,920 at Christmas. In 2021 at Christmas the respondent closed the Thurs or Fri before Christmas and opened after New Years. This was during covid and he was looking for updated scaffold and the respondent was shutting down 2 or 3 times during covid owing to health and safety. The complainant told the respondent he could not do it any longer with his health and safety concerns and told them by message.
“well …hope all is well. As u know reluctantly I am finishing up today. I want to thank u and your family for everything over the past nearly 5 years and I wish you health and best of luck for Christmas and the future”.
and he meant by this he could not carry on and hoped he would not have to leave and the boss would help and he told the boss “thanks must track down a job” and Mr A said “we should have a chat in the new year”. Then Mr A phoned him in the new year and said the complainant could go work doing maintenance instead which the complainant was happy with and Mr A said they would meet on 04/01/2022 and work with a different foreman. Mr A wanted him to start the following day on 05/01/2022 but he told him he would start 12/01/2022. Everything stayed the same as previously with his pay and terms except he was not doing scaffolding anymore. The letter on 17/01/2025 was a shock and they were told on the Monday they would be gone Friday as work was coming to an end. He had no input into the redundancy process, no alternative to redundancy, nothing was said about deploying him to another site. He would have worked anywhere and did not know what ‘programme of works’ referred to in the letter meant and there were other houses he could have worked on. The complainant felt he was selected because of age and there was no opportunity to appeal. He was just given 2 weeks notice and not given the right redundancy and after work he finished and worked for a company for 7 weeks which did not suit him and looked for work and then had surgery and his specialist says he should not go back working with his knee issue.
CROSS EXAMINATION OF COMPLAINANT He said in 2021 he was not able to work anymore with the covid challenges and that there was one other made redundant in 2025. He did not have a pay slip and it seemed the figure of €1,920.04 was holidays and week in hand. He had previously given his notice in 2021. When the respondent made him redundant he was six months out of work and got 3 job offers, 2 which were far away. He was the second longest serving employee, there from the 2018 start date and with the 2022 start date he still had longer service than some who remained.
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Summary of Respondent’s Case: CA-00069214-003
The complainant gave his notice to resign on 21/12/2021 and had previously resigned October 2021. He was asked by Mr A “would u consider staying on for another while as u no we are under staffed at the moment…we always looked after u even win we left all the other boys go we kept u on have a think about it the weekend thanks” [sic] Later the respondent exchanged messages including that they were sorry to see him go and wished him a merry Christmas and the complainant replied “thanks a lot[sic] …, must track down a job now” and the respondent said “We should have a chat in the new year” to which the complainant said he appreciated that and for the respondent to contact him when they were ready. Well …thanks for taking the time to chat today. My van wont b sorted till Friday as mechanic waiting on water pump. I will b in Monday if that’s ok” and he had been asked back and agreed. It was the respondent’s understanding that the complainant asked for his job back on 04/01/2022 and the respondent agreed the complainant could work with a different foreman and while the company had returned on 03/01/2022 the complainant did not return until 12/01/2022.
The respondent submitted that all the complainant’s terms and conditions had been agreed verbally and he knew them and suffered no detriment by not having a written contract.
The complainant’s first employment was as scaffolder and general operative on a housing construction site. His second employment was a general operative and decorator and the complainant’s role as scaffolder had been replaced with outside contractor when he resigned his position in 2021. The complainant was given notice based on his employment commencing from January 2022 and not January 2018. The complainant and another employee were made redundant and not replaced. The complainant’s redundancy payment was available and he choose not to accept it and it is available to him.
Evidence of Mr Jason Enrigh Director The complainant resigned December 2021 and he had been told by his father who had dealt with the complainant that he had replied to the complainant’s resignation out of politeness and then the complainant asked for his position back and the work in the new position was different and he was let go and staff reduced. He had previously worked doing scaffolding but did not in the new role.
CROSS EXAMINATION OF MR JASON ENRIGHT: The complainant’s terms were not written down and he was experienced in construction and scaffolding and had his certs and he was going to resign at Christmas and he did not know if he was asked to withdraw his resignation and it was a new position in the company that he took up with the same pay. The site opened on 03/01/2022 and the complainant had said he wanted a job back and there was verbal consultation and nothing to consult on and there was no alternative. The respondent looked for work for him as much as they could. There is a portfolio of property and he had been on different projects and there was no more work. There was no consideration of lay off as there was no need for scaffolding. One of those kept on after him had longer service and one had machine operation skills and there are 3 employees at the moment 2 specialised and 1 assistant to the carpenter. |
Findings and Conclusions: CA-00069214-003
The complainant submits that he did not receive his statement of employment and the respondent submits that the complainant knew his terms of employment and did not suffer a detriment.
It is set out under Section 3(1) “An employer shall, not later than one monthafter the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—…..”
It was not in dispute that the complainant did not receive a written statement in writing of terms of his employment and although the respondent submits that the complainant was aware of his terms of employment and suffered no detriment, it would appear on the fact of the complaint that the complainant was unaware of some relevant terms including his start date and the procedure to raise a grievance where the need arose.
In all the circumstances I find that the complaint is well founded and award the complainant €2,500. |
Complainant’s Case: CA-00069214-004
It was submitted that the complainant is an experienced construction worker who commenced employment on 29/01/2018. In Christmas 2021 the complainant was having difficulties with the foreman including safety concerns around covid. The respondent was taking a break over Christmas and the complainant sent a text message saying he was finishing up on the last day before the Christmas break of 21/12/2021 and Mr A Director requested a meeting with him asking him to withdraw the notice on 04/01/2022 and that the complainant could work with another foreman and the complainant continued working with the company from 12/01/2022. On 17/01/2025 the complainant received a letter saying that the project he was working on had come to an end and there was no other work available and he would be made redundant on 31/01/2025 and would be paid holiday and redundancy and the complainant would not accept this redundancy and has received no redundancy.
The complainant received a letter on 17/01/2025 without prior consultation of any redundancy and which confirmed a decision had already been made. The decision was based on projects coming to an end. There was no alternative to redundancy proposed, no reasons given, no consultation, no fair selection criteria used and no evidence that completion of a project necessitated the redundancy of the complainant and the complainant was not afforded opportunity to appeal. The complainant worked for a period of time after termination which was unsuitable and then had a knee replacement and has not worked since on the advice of his doctor.
It was submitted that the complainant never received written terms of employment and did not get an appropriate redundancy payment. The complainant submits his start date is 29/01/2018 and not 12/01/2022 as submitted by the respondent.
The complainant submits he did not get appropriate minimum notice based on his service from 2018 and not 2022.
Case law cited included Martin v Yeoman Aggregates Ltd, Shinkwin v Donna Millett, Kenny v Tegral Building Products Ltd [2006] 1JIEC1601, mulligan vJ2Global (Ireland) Ltd, O’Driscoll v CIL Precision [2011] 22 ELR68
COMPLAINANT’S EVIDENCE: The complainant said that before employment with the respondent he built houses and started working with respondent in January 2018. He’s qualified in scaffolding and did house maintenance, labouring and cleaning and never got terms of employment from the respondent. He got paid €685.73 and a payment of €1,920 at Christmas. In 2021 at Christmas the respondent closed the Thurs or Fri before Christmas and opened after New Years. This was during covid and he was looking for updated scaffold and the respondent was shutting down 2 or 3 times during covid owing to health and safety. The complainant told the respondent he could not do it any longer with his health and safety concerns and told them by message.
“well …hope all is well. As u know reluctantly I am finishing up today. I want to thank u and your family for everything over the past nearly 5 years and I wish you health and best of luck for Christmas and the future”.
and he meant by this he could not carry on and hoped he would not have to leave and the boss would help and he told the boss “thanks must track down a job” and Mr A said “we should have a chat in the new year”. Then Mr A phoned him in the new year and said the complainant could go work doing maintenance instead which the complainant was happy with and Mr A said they would meet on 04/01/2022 and work with a different foreman. Mr A wanted him to start the following day on 05/01/2022 but he told him he would start 12/01/2022. Everything stayed the same as previously with his pay and terms except he was not doing scaffolding anymore. The letter on 17/01/2025 was a shock and they were told on the Monday they would be gone Friday as work was coming to an end. He had no input into the redundancy process, no alternative to redundancy, nothing was said about deploying him to another site. He would have worked anywhere and did not know what ‘programme of works’ referred to in the letter meant and there were other houses he could have worked on. The complainant felt he was selected because of age and there was no opportunity to appeal. He was just given 2 weeks notice and not given the right redundancy and after work he finished and worked for a company for 7 weeks which did not suit him and looked for work and then had surgery and his specialist says he should not go back working with his knee issue.
CROSS EXAMINATION OF COMPLAINANT He said in 2021 he was not able to work anymore with the covid challenges and that there was one other made redundant in 2025. He did not have a pay slip and it seemed the figure of €1,920.04 was holidays and week in hand. He had previously given his notice in 2021. When the respondent made him redundant he was six months out of work and got 3 job offers, 2 which were far away. He was the second longest serving employee, there from the 2018 start date and with the 2022 start date he still had longer service than some who remained.
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Summary of Respondent’s Case: CA-00069214-004
The complainant gave his notice to resign on 21/12/2021 and had previously resigned October 2021. He was asked by Mr A “would u consider staying on for another while as u no we are under staffed at the moment…we always looked after u even win we left all the other boys go we kept u on have a think about it the weekend thanks” [sic] Later the respondent exchanged messages including that they were sorry to see him go and wished him a merry Christmas and the complainant replied “thanks a lot[sic] …, must track down a job now” and the respondent said “We should have a chat in the new year” to which the complainant said he appreciated that and for the respondent to contact him when they were ready. Well …thanks for taking the time to chat today. My van wont b sorted till Friday as mechanic waiting on water pump. I will b in Monday if that’s ok” and he had been asked back and agreed. It was the respondent’s understanding that the complainant asked for his job back on 04/01/2022 and the respondent agreed the complainant could work with a different foreman and while the company had returned on 03/01/2022 the complainant did not return until 12/01/2022.
The respondent submitted that all the complainant’s terms and conditions had been agreed verbally and he knew them and suffered no detriment by not having a written contract.
The complainant’s first employment was as scaffolder and general operative on a housing construction site. His second employment was a general operative and decorator and the complainant’s role as scaffolder had been replaced with outside contractor when he resigned his position in 2021. The complainant was given notice based on his employment commencing from January 2022 and not January 2018. The complainant and another employee were made redundant and not replaced. The complainant’s redundancy payment was available and he choose not to accept it and it is available to him.
Evidence of Mr Jason Enrigh Director The complainant resigned December 2021 and he had been told by his father who had dealt with the complainant that he had replied to the complainant’s resignation out of politeness and then the complainant asked for his position back and the work in the new position was different and he was let go and staff reduced. He had previously worked doing scaffolding but did not in the new role.
CROSS EXAMINATION OF MR JASON ENRIGHT: The complainant’s terms were not written down and he was experienced in construction and scaffolding and had his certs and he was going to resign at Christmas and he did not know if he was asked to withdraw his resignation and it was a new position in the company that he took up with the same pay. The site opened on 03/01/2022 and the complainant had said he wanted a job back and there was verbal consultation and nothing to consult on and there was no alternative. The respondent looked for work for him as much as they could. There is a portfolio of property and he had been on different projects and there was no more work. There was no consideration of lay off as there was no need for scaffolding. One of those kept on after him had longer service and one had machine operation skills and there are 3 employees at the moment 2 specialised and 1 assistant to the carpenter. |
Findings and Conclusions: CA-00069214-004
The complainant submits that his minimum notice should be based on a start date of 29/01/2018 and the respondent submits that the complainant start date was 12/01/2022.
Under Section 4(1) Minimum period of notice 4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
The complainant submits that he did not receive the appropriate minimum notice and the respondent refutes this. I have previously found in CA-00069214-001 the complainant’s start date was 29/01/2018 and as the complainant’s employment finished on 31/01/2024, I find therefore the complainant has been in continuous service “for five years or more, but less than ten years” and that the minimum notice is “four weeks”. I find that the complaint is therefore well founded and award the complainant €2,742.92.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00069214-001 In all the circumstances I find that the dismissal of the complainant was procedurally unfair and the complainant did not make sufficient efforts to mitigate his loss and I award him €1,500 gross which I find fair and reasonable.
CA-00069214-002 Taking into consideration all the submissions and evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following: Date of Commencement: 29/01/2018 Date of Termination: 31/01/2025 Gross Weekly Pay: €685.73 This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.
CA-00069214-003 I find that the complaint is well founded and award the complainant €2,500.
CA-00069214-004 I find that the complaint is therefore well founded and award the complainant €2,742.92. |
Dated: 24th of April 2026.
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Start date, redundancy, unfair dismissal, terms of employment and minimum notice |