Complainant

Respondent

Parties

Gabriel  Frau Fuster

Cliff At Lyons

Representatives

Dominic Wilkinson B.L instructed by ARAG Legal Protection Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00072069-001

02/06/2025

The complaint has been made under the Protection of Employment Act, 1977.

The complainant gave his evidence on affirmation.

He says that he had been  made redundant in February 2025 and now the respondent has recruited a replacement for his  position, but he had not been contacted by them at all to establish his availability.

In response to the respondent’s submission, he had not been aware of the fact that the Act under which he makes the complaint related to collective redundancy.

He said that one other persons had been made redundant at the same time as he had been, and he believes that two others were subsequently made redundant.

By way of background the respondent sets out that on November 26th, 2021, the Complainant was offered employment as a Culinary Gardener,  and he commenced onJanuary 14th, 2022.

On January 17th, 2025, the respondent commenced a redundancy consultation process with the complainant of which details were provided.  On January 27th  2025 he was notified that his role was to be made redundant and that his employment would terminate on 20th February 2025

The Complainant lodged a WRC Complaint on June 27th, 2025, under the Protection of Employment Act 1977.

He has stated as follows in the section entitled “Complaint Specific Details or Statement”:

 “I was made redundant less than 4 months ago and now the company is hiring for my position I have not been contacted by them at all for this position”

The complainant bears the burden of proof in respect of his complaint to the WRC, which is denied and disputed.

On the face of the Complaint forms lodged on June 2nd, 2025, the Complainant has not specified on what grounds, he is making the purported complaint under the Protection of Employment Act 1977.

In view of this it is respectfully submitted that as the complainant has not pleaded any grounds of complaint under the said Act, he has not pleaded any cause of action. For relevant case law see Louth VEC v Brannigan 2016 IESC 40 1 (Mr Justice McKechnie) and 2016 IESC 40 2 (Mr Justice MacMenamin).

For the purposes of the specific complaint, it is relevant to note that the respondent had just over one hundred employees at the time of the complainant’s redundancy.

Unfortunately for the complainant, it appears that he has not chosen the correct legislation under which to bring his complaint.

The Protection of Employment Act, 1977 is a measure to provide for consultation and information and other procedures where  a larger number of employees are facing redundancy; a ‘collective redundancy’.

Section 6 of the Act defines this as redundancy which involves at least five workers in a business employing between twenty and fifty, at least ten where there are fifty to one hundred and 10% of the workforce in companies bigger than that.

The respondent submitted that it had just over one hundred employees at the time the complainant was made redundant. The complainant’s evidence was that only one other had been made redundant at the same time as he was, although he thought that two others were affected subsequently.

This is well short of the threshold in the Act, as set out above.

As it happens, the complainant confirmed that he had not intended to refer his complaint under this legislation but under the Redundancy Payments Act.

The respondent submitted the leading case of Louth VEC v Brannigan 2016 IESC 40 which considered the limits on the jurisdiction of an Adjudicator (in that case an Equality Officer) to manage a hearing by reference to a general principle of what the Court in that case described as ‘procedural autonomy’.

Within this context the Court found that an Adjudicator has latitude in relation to aspects of general case management, and even certain detail on the complaint form, especially where both parties consent to this, but as the phrase suggests only where this is related to the procedures. (The issue in that case concerned the making of a preliminary decision).

However, this latitude does not, in my opinion, extend to taking the statute under which a complaint has been lodged and substituting it with another. A party notified of a complaint under a specific statute will be expected only to answer that complaint.

In Brannigan the Court states at paragraph 44

The type of decision made by Ms. Murtagh (The Equality Officer)in this case can also be regarded as somewhatakin to a case managementtype decision, rather than one raising any issue of law. Even so, however, and whilstI would be very slow to interfere with an officer’s procedural autonomy, nonetheless that is not to say that she is totally at large in what decision she might make…….

In the overall context, however, a significant degree of self-determination will be respected, subject to the overriding principles of natural and constitutional justice (see Calor Teoranta v. McCarthy [2009] I.E.H.C. 139).

And later at paragraph 51

Inaddition, inaccordance withlongestablishedprinciple, there is a presumptionthatboththe process ofmakingthe decisionand thedecisionitselfwillhavedueregardto naturalandconstitutionaljusticeand,furthermore,willbemadeinaccordancewithlawand therefore within the jurisdiction conferred on her under the 1998 Act.

This provides a flavour of the procedural or case management discretion which an Adjudicator may reasonably exercise, and it quite clearly does not extend proceeding to hear a complaint made under one particular statute under an entirely different one. This would obviously contravene the ‘the overriding principles of constitutional and natural justice’ principle referred to by the Court above. The Court went on to say in paragraph 44.

I simply make the pointto emphasise that, in certain admittedly rather exceptional circumstances, such a procedural decision may be amenable to judicial review. In the overall context, however, a significant degree of self determination will be respected, subject to the overriding principles of natural and constitutional justice (see Calor Teoranta v. McCarthy [2009] I.E.H.C. 139).

For the reasons set out above, I find that there has been no breach of the Protection of Employment Act, 1977 under which the reference was made and there is no option to hear the complaint under any other statute, also for the reasons set out.

Complaint CA-00072069-001 is not well founded.

Complaint CA-00072069-001 is not well founded.

Redundancy