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WRC Held Employee Unfairly Dismissed – He Should Have Been Laid-Off Rather Than Made Redundant

Facts: The Complainant began working with the Respondent company in 2015 as a driver for their provision of tours and sightseeing events in Dublin and nationally. He worked his way up to the role of transport manager with an annual salary of €45,000. His employment was terminated in July 2020.

On 13th March 2020, the Respondent closed due to the pandemic and the employees applied for the PUP. The Managing Director (MD) stated that he anticipated it will be March 2022 before the business opens to full capacity again. In June 2020 the MD made a number of jobs redundant within the company, including the Complainant’s job of transport manager. The Complainant claims that this was not a genuine redundancy. In addition, the Respondent had failed to pay him outstanding wages and holiday pay, and he never received a statement of his terms and conditions of employment.  

Regarding the events that led to his redundancy, he described a meeting with the MD on 16th June 2020, where he was informed that the MD would be taking on the job of transport manager. As the Complainant was leaving the meeting, the MD made an offer of a driver role “if business picks up” but the Complainant stated that this offer was entirely disingenuous.  The Complainant submitted that he was selected for redundancy because of complaints he made about the performance of a mechanic and the conduct of a driver, both of which were close to the MD. However, he claimed that no consultation process or fair procedure took place in respect of his alleged redundancy. The Complainant also argued that there was no need for him to be made redundant as his role will still exist when the Respondent reopens for business.

In addition to this, the Complainant submitted a copy of his final payslip dated 12/03/2020. He received no wages after this but continued to work until 30/03/2020. He also claims that the Respondent did not provide him with a reference which has impacted his ability to find new employment. The Complainant also claimed that he did not receive a statement of his terms and conditions of employment, despite his repeated requests for a contract when he was promoted in August 2019.

Decision: The WRC Adjudication Officer, Catherine Byrne, found that the efforts of the Complainant to address the conduct of certain employees closely related to the Respondent likely caused conflict between him and the Respondent. Additionally, the job of transport manager remained necessary when the business reopened and the task of managing and scheduling 40 buses was unlikely to be carried out by the MD when tours recommenced. The Adjudicator held that while the role of Transport Manager was not required to be done in June 2020 that it was never considered that the role would not be required in the future. She stated that the Complainant should have been put on lay off until the bus tours started again. After considering the process followed, the Adjudicator found that from a substantive and procedural perspective, the dismissal of the Complainant was entirely unfair. Interestingly, when considering the amount of compensation to award, regardless of the Complainant being out of work for approximately a year, the Adjudicator estimated when the Complainant would have re-started work if he had not been dismissed and made the award from that date, not taking into account the period that she considered the Complainant would have been on lay-off. The Adjudicator also came to the view that he would not be out of work for much longer with the opening of the country. She therefore made an award of €14,724 being six months of his gross earnings less the statutory redundancy he received.

It was also found that the Complainant is legally entitled to €1,284 net wages of the two weeks he worked and was not paid, less €700 in respect of the two weeks’ PUP that the Complainant received for those two weeks. The Complainant also received €642 net pay for five days’ holidays that were not taken.

The Adjudication Officer found that the Complainant was never issued with a statement of his terms and conditions of employment and awarded €3,461.54 in compensation, the equivalent of four weeks’ pay which is the max award. The Complainant’s total award came to €20,411.54.

Takeaway for the Employers: Employers need to consider laying off employees as an option before implementing redundancies and must follow full procedures regardless of the circumstances. It is also interesting to note that an employee is not entitled to salary from his/her employee for the period that he/she received PUP. Separately, the Adjudicator also indicated in her decision that it is better to issue an employment contract late than never at all.

Link  – https://www.workplacerelations.ie/en/cases/2021/august/adj-00029991.html

Authors – Anne O’Connell and Hannah Smullen

27th August 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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