Complainant

Respondent

Parties

Valeriu Buscan

Rigotec International Limited

Representatives

Andrew Turner of Hamilton Turner Solicitors

Cillian McGovern BL instructed by Crushell & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065157-001

01/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065157-002

01/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065157-004

01/08/2024

This case was listed for hearing along with ten connected cases. Separate decisions have issued in a number of those cases. Evidence was heard in relation to three of the cases, this one along with ADJ-00053401 and ADJ-00053405.

The Complainant commenced employment with the Respondent on 26th June 2022 and his employment was terminated on 2nd February 2024.

The Complainants in each of the cases were represented by Mr. Andrew Turner of Hamilton Turner Solicitors. Mr. Turner confirmed at the hearing that the complaints relating to payment of wages were being withdrawn in all cases. In this case, that is complaint reference number CA-00065157-001 and it is therefore deemed withdrawn.

The complaint form was received by the Director General of the Workplace Relations Commission (WRC) on 1st August 2024. A letter issued from the WRC to the Complainant on 6th September 2024 which stated the following:

Parallel Complaints

It is noted that you have referred a complaint of discriminatory dismissal under Section 77 of the Employment Equality Act 1988 and a claim of unfair dismissal under the Unfair Dismissals Act 1977.

In accordance with Section 101(4A) of the Employment Equality Act 1998, the complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn unless, not later than 42 days from the date of this letter, the complainant withdraws the claim under the Unfair Dismissals Act 1977.

You are now requested to advise the Commission in writing not later than 42 days of the date of this letter if you wish to withdraw the claim under the Unfair Dismissal Act 1977. If you withdraw the claim of unfair dismissal within the 42 day period, the Commission will then make arrangements to process the complaint under the Employment Equality Act 1998.

You should note that if you do not respond to this letter within the 42 day period, your complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn and the Commission will then make arrangements to process the complaint under the Unfair Dismissals Act 1977.

No response was received to this letter and a further letter issued to the Complainant dated 22nd October 2024 which stated:

I refer to the Commission’s letter dated 06/09/2024 requesting you to advise the Commission in writing not later than 42 days of that letter if you wished to withdraw the claim under the Unfair Dismissals Act 1977. As you have not responded to that letter your complaint of dismissal under the Employment Equality Act 1998 is now deemed to have been withdrawn and the Commission will now make arrangements to process the complaint under the Unfair Dismissals Act 1977.

The complaint submitted under the Employment Equality Act, 1998 was therefore deemed withdrawn and this was confirmed with the Complainant at the hearing. Accordingly, complaint reference number CA-00065157-004 is withdrawn.

There is therefore one remaining complaint and that is one of unfair dismissal which is the subject of this decision.

The Complainant gave evidence on his own behalf by way of religious oath. Evidence was given on behalf of the Respondent by Mr. Alan Jennings, Site Manager, by way of civil affirmation. All parties were cross-examined. An Interpreter was also present at the hearing and the interpreters’ oath was administered.

One document was submitted by the Respondent to the WRC on the morning of the hearing and, having had some time to consider its contents, the Complainant did not object to it being admitted.

The Complainant contends that his dismissal was effected under the guise of a redundancy which was not genuine. He submits that no consultation process was undertaken, no notice of redundancy was issued, and that no bona fide redundancy situation existed.

In his complaint form, the Complainant outlined that on 19th January 2024 an issue arose in relation to the preparation of a document in the Romanian language. During this incident, remarks of a derogatory nature were made by a colleague, who was supported by another employee.

The Complainant stated that a number of Romanian employees, including himself, thereafter raised a formal complaint with management. The two employees were initially suspended and a later meeting convened by senior management reiterated a policy of zero tolerance towards racism. However, on 29th January 2024, the Complainant submits that he and his colleagues were asked by a representative of the Respondent to accept an apology offered by one of the colleagues involved, which he believed had been made under duress and without genuine remorse.

Following this, the Complainant and his colleagues expressed discomfort at the prospect of continuing to work with the individual concerned. They were presented with the option of either resuming work under these conditions or leaving the site. After a period of consideration, management and security personnel instructed them to either return to work or leave the premises. The Complainant, due to these circumstances, resumed work.

On 2nd February 2024, the Complainant was informed that his employment was being terminated on the basis of a lack of work. The Complainant disputes the legitimacy of this rationale, asserting that the project remained ongoing and that no proper redundancy procedures were followed.

In written submissions, the Complainant relied on a number of authorities in support of the contention that the dismissal was not a genuine redundancy and that the process adopted by the Respondent was fundamentally flawed. It was submitted that established case law requires any redundancy selection to be grounded in objective, transparent and impersonal criteria. In this regard, reliance was placed on Dublin Tech Summit v Lundy (UDD/219) and Tanneron Limited v Conolin (UDD/2151), in which findings of unfair dismissal arose from deficiencies in the redundancy selection process, notwithstanding that a redundancy situation may have existed.

The Complainant also submits that an employer is under an obligation to consider alternatives to redundancy, including identifying and offering suitable alternative roles, as set out in Jeffers v DDC Ireland Ltd (UD 169/2000). It is further contended, following Daly v Hanson Industries Ltd (UD 719/1986), that any redundancy defence must be carefully examined to determine whether it is genuine or merely a pretext, and whether there is a causal link between the alleged redundancy and the dismissal.

Applying these principles to the present case, the Complainant submits that no redundancy process was undertaken by the Respondent. It is asserted that no selection criteria were identified or applied, no consultation or engagement took place, and no alternatives to dismissal such as redeployment, reduced hours, or lay-off were considered. The Complainant further contends that there was no demonstrable reduction or change in the work being carried out and that the selection for redundancy was not impersonal. In those circumstances, it is submitted that the Respondent failed to comply with the requirements for a valid redundancy and that the dismissal cannot be characterised as genuine.

The Complainant earned €19.35 per hour. After his dismissal, he remained unemployed until 2nd July 2024 when he secured alternative employment. He was unavailable for work for approximately one month during that period as he took some time to care for an ill relative. He is claiming compensation for the remaining period, which he states is 4 months, being the months of March to the beginning of July inclusive.

He stated that he actively sought work by applying for jobs on a recruitment website, calling friends and bringing his CV into different companies. He was not able to secure employment in his town but was successful further afield.

His claimed financial loss was calculated at €15,472 over 16 weeks.

The Respondent denies that the Complainant was unfairly dismissed and states instead that this was a genuine redundancy situation as a result of a downturn in the amount of work being received. It was explained that the Respondent was dependant on a particular client to provide work and the amount of work coming “fell off a cliff” which resulted in the need to make redundancies.

It was not disputed that one Irish employee had made a racist remark to several of the Complainants. This person was dismissed for his conduct. A second employee, who had been involved in the incident, was given a verbal warning and an apology was requested from him which he duly gave. It was stated that the Company had a zero tolerance approach to racism.

However, it was asserted that the Complainant was not dismissed because of his opposition to this incident. Rather, the Complainant was let go as part of a redundancy process due to a downturn in work. The Respondent’s witness stated that, off the top of his head, 10-16 individuals were let go at this time. He stated that they could not be offered work any where else as the Respondent’s only on-site work at that time was this particular site. The decision to make people redundant was made before Christmas, which pre-dated the incident complained of, but a decision was taken to only notify people of that decision after the Christmas break.

The Respondent was asked by his representative how much notice the client had given him of the downturn in work. He responded that they didn’t exactly provide notice. When asked if he was responding to the client’s needs, he said “yes”.

A selection matrix was created by the then General Foreman and HR Manager, neither of whom were available to give evidence at the hearing, and they made the decisions regarding who was selected for redundancy. The selection matrix document prepared by those individuals was introduced as evidence and it was explained that the General Foreman reported to the Respondent witness at the time. The selection criteria included productivity, knowledge of the overall business, flexibility, timekeeping and any disciplinary issues.

When asked about staffing figures for the last number of years, the Respondent witness stated that the headcount in January 2024 was 120; in 2025 it was 60 and in 2026 it was 30.

The Respondent’s position is that this was a genuine redundancy situation and therefore a fair dismissal.

Further, the Respondent submits that even if the dismissal was deemed to be unfair, the Complainant has failed to mitigate his losses as required by his statutory obligation to do so under section 7(2)(c) of the Unfair Dismissals Acts.

The Respondent asserts that established case law requires a complainant to demonstrate consistent and structured efforts to obtain alternative employment, and that any failure in this regard may result in a significant reduction in compensation. Reference in written legal submissions was made to Cityjet v Gil UDD215, where an award was reduced in circumstances where the complainant could not substantiate attempts to secure alternative employment. Similarly, in McGuire Haulage Ltd v O’Farrell UDD2324, the Labour Court found that limited and informal job-search efforts were wholly insufficient, leading to a substantial reduction in compensation.

The Respondent further cites N Smith & Sons Ltd v Ragelis UDD2332 as authority for the proposition that, even where a dismissal is found to be unfair, a failure to mitigate may result in no compensation being awarded. These principles are said to reflect the established position set out in Sheehan v Continental Administration Co Ltd UD858/1999, which requires an unemployed complainant to devote a reasonable portion of each working day to seeking employment, with passive measures such as merely notifying recruitment agencies being insufficient.

Applying these principles, the Respondent submits that the Complainant has failed to adduce evidence of any meaningful or sustained efforts to secure alternative employment, including a lack of documented job applications or engagement with recruitment agencies. In such circumstances, the Respondent contends that the Complainant has not met the statutory burden, and that any award of compensation should either be refused or significantly reduced to reflect the failure to mitigate loss.

As the complaints relating to employment equality and payment of wages have been withdrawn, the sole remaining complaint is one of unfair dismissal. This is addressed by the Unfair Dismissals Act, 1977 (as amended) (hereinafter “the Act”).

Section 6 of the Act states that:

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 goes on to state that a dismissal will automatically be considered unfair if it happens mainly because the employee exercised certain rights or had particular characteristics (like union involvement, whistleblowing, taking leave, or pregnancy).  In short, you can’t be dismissed for asserting your legal rights, taking protected leave, or due to personal beliefs or protected personal attributes.

In this case, the Respondent states that the Complainant was not unfairly dismissed but rather was made redundant. Section 6(4) states that:

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:

[…]

(c) the redundancy of the employee,

It is therefore a defence to a claim of unfair dismissal that the employment was terminated by reason of redundancy.

As a result of section 6(6) of the Act, it is for an employer to prove that the dismissal was for a valid reason allowed under the Act. In other words, the burden is on the employer to justify the dismissal, not on the employee to show it was unfair.

The question for me is therefore whether the Respondent has discharged its burden of proof that the dismissal was due to a genuine redundancy.

In short, I find that it has not. There was an appalling lack of transparent procedures in this case. The evidence given by the Respondent witness was that all affected individuals were called together, the information was delivered that their employment was being terminated, they were escorted off the premises and subsequently paid their notice period. The reason given for this method was that the client was concerned about anyone wandering around who would possibly press an emergency shut down button which would result in a potential considerable financial impact, so the decision was made to release the employees immediately and pay notice in lieu.

I do not accept the Respondent’s evidence that a client’s possible fear of damage by a potentially disgruntled employee is a justification for a complete failure to implement and follow fair procedures. There was no consultation and no apparent effort to seek to reduce or minimise redundancies. The selection criteria document produced at the hearing was created and administered by witnesses who were unavailable to give evidence, as such I do not give any significant weight to the credibility of this document. Similarly, these witnesses also allegedly made the selections for redundancy on this occasion but as they were not present to give evidence the Respondent has not been able to establish that the Complainant was fairly selected.

Under cross examination, the Respondent also confirmed that the letters of termination were not available to be produced; accepted that no procedures existed in a contract of employment or employee handbook; that no notice of risk of redundancy had been given and that there was no notice of the risk matrix or termination rights given to the Complainants.

The Respondent gave direct evidence of a downturn in business; however he did not provide any supporting evidence of this downturn or reduction in employee numbers. He did not provide sufficient evidence that a genuine redundancy existed at this particular time. Further and for the sake of clarity, even if I accepted that any such redundancy was genuine, the Respondent was unable to establish based on the evidence tendered that the Complainant was fairly or impersonally selected.

In the circumstances, I find that the Complainant was unfairly dismissed within the meaning of the Act and I do not accept that his dismissal resulted wholly or mainly from redundancy.

That being the case, I will address what redress is available to the Complainant.

Section 7 of the Act, in relevant part, states that:

(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, 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,

(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,

(2) 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 financial loss referred to in that subsection was attributable to an act, 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, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“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”;

In this case I believe that the actions of the Respondent have served to utterly undermine the implied term of trust and confidence between the parties and so I am satisfied that re-engagement and re-instatement are not appropriate remedies in this case. That leaves the option of compensation.

As is clear from the Act, section 7(1)(c)(i) compensation is for “any financial loss attributable to the dismissal”. Financial loss is defined as including actual loss and estimated prospective loss of income.

The Complainant provided sworn evidence that his earnings at the material time were €19.35 per hour and that he is seeking €15,472 net for the losses he suffered over 16 weeks following his dismissal.

The Respondent submitted that the Complainant had not sufficiently shown that he had mitigated his loss because, while conceding he secured alternative employment earlier than his colleagues, he did not provide documentary evidence of his efforts to mitigate his loss at the hearing.

It is well known that a Complainant has a duty to mitigate their loss and the often-cited Employment Appeals Tribunal decision in Sheehan and Continental Administration Company Limited UD 858/1999 addresses this duty when it states:

“A claimant 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 that case, the Tribunal was not satisfied that the Claimant had taken reasonable steps to mitigate his loss.

More recently, in the Labour Court decision of Accountancy & Business College (Ireland) Limited T/A Dublin Business School and Amir Sajad Esmaeily UD/24/134 the Court stated that:

“The purpose of any award of compensation for unfair dismissal is to compensate for financial losses incurred because of the dismissal.

[…]

A compensation award must be an amount that is “just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.  The obligation to mitigate loss is not the sole factor to consider when assessing an award of compensation.”

As set out above, there is a clear duty to make efforts to mitigate any loss suffered and while I accept the Complainant’s sworn evidence that his losses reflect 16 weeks wages, he did not provide supporting documentation demonstrating the efforts that he made during this time. However, I can also take into account the extent to which the loss was attributable to the conduct of the employer and what is just and equitable in the circumstances.

The Complainant identifies his loss as a net amount of €15,472. His failure to submit supporting documentation showing his efforts to mitigate his loss in that time is a factor that I consider reduces the overall amount.

For that reason, I find that €10,000 net as compensation for the Respondent’s unfair termination of his employment is just and equitable in the circumstances.

For the reasons set out above, I find that the Complainant was unfairly dismissed. I find that the Respondent must pay €10,000 net in compensation to the Complainant.

Unfair dismissal