ADJ-00028134 - Workplace Relations Commission Gary Powell v C&F Tooling Limited

• Jurisdiction: Ireland
• Judgment Date: 09 February 2023
• Court: Workplace Relations Commission
• Docket Number: ADJ-00028134
• Date: 09 February 2023
• Respondent: C&F Tooling Limited

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The hearing of 22/6/21 was adjourned pending legislation to allow for evidence under oath or affirmation and hearings were 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.

Parties were advised 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 and that this decision would not be anonymised and there was no objection to same.

Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Where submissions were received they were exchanged. Where there was serious and direct conflict of evidence, evidence was taken under affirmation from the Complainant and under affirmation from Majella Barry, Payroll Manager and Margaret O’Halloran, Human Resources Manager. Gwen Malone Stenography Services attended at the request of the respondent.

Background:

The complainant submits that he was unfairly dismissed, that he was unfairly selected for redundancy and that his employment was terminated because of personal injury proceedings he issued against the respondent and that no other alternative roles were explored. The respondent submits that the dismissal was not unfair, that the dismissal was because of redundancy and that any financial loss is not attributed to dismissal but attributed to physical restrictions which does not allow the complainant to obtain a higher paying job. The respondent provided a stenographer to transcribe evidence of the Complainant and a copy of the transcript was furnished to the Adjudication Officer who forwarded a copy to the complainant.

Summary of Respondent’s Case:

In response to the complainant’s query as to why a stenographer was present, the respondent submitted that the complainant is under oath/affirmation and because there is a personal injuries claim pending, the respondent requires a record and it would be for the judge deciding on the personal injuries claim to decide on admitting the transcript into evidence. The respondent submitted that a stenographer is permitted in the Labour Court and in response to a request by the complainant for a copy of the stenographer’s transcript, the respondent responded that the complainant could have a copy if they paid for same. The complainant submitted that as a copy of the transcript which would be sent to the adjudicator, and in line with normal procedures a copy of such correspondence would be issued to parties, the complainant would receive a copy in that manner. There was no objection from the respondent and the hearing then proceeded. Preliminary Issue: The respondent submitted that the complainant has parallel proceedings of a High Court claim for personal injuries and financial loss under common law. It was submitted that the complainant was now required to make an election to proceed on the financial loss claim either under the Unfair Dismissal Acts or at common law. Further, the spectre of differing evidence given in two separate forums related to the same issue (the cause of his alleged financial loss), requires the Complainant to be placed under oath in the WRC. In these proceedings financial loss is claimed as the direct result of an alleged unfair dismissal. In the High Court proceedings, the same financial loss is claimed as a direct result of alleged long term medical sequalae from an alleged work-related injury which is pleaded by the Complainant in the High Court proceedings including: “The Plaintiff is unable to lift anything of any weight with outstretched arms and has constant low-grade pain and is aggravated by daily activity which can be a very sharp pain which at times can be sustained for a few hours. The pain has great intensity.” …..He will have permanent low-grade neck pain and will be restricted in his future work.” It was submitted that the Complainant signed an affidavit of verification attesting, under oath, to the truth of the above assertions contained in his pleading. Substantive Issue: The respondent submitted that the complainant was employed as a Computer Numeric Controlled (CNC) Operator under a contract of employment dated 26 October 2010. CNC operators work with computer numeric controlled heavy machinery from setup to operation to produce parts and tools from metal, plastic, or other materials. CNC equipment is precision machinery that cuts, grinds, or drills into the material. At all relevant times, the Complainant worked on a machine purchased by the Respondent exclusively for production of bespoke wind turbine parts ordered by one customer, C&F Green Energy limited (CFGE). Most of the parts machined by the Complainant were small enough to be loaded into the CNC lathe manually. The larger parts would arrive on a pallet by forklift. CFGE was a wholly owned subsidiary company of Respondent engaged in the manufacture, sale, service, and maintenance of small wind turbines throughout the world. CFGE purchased a variety of wind turbine parts from the Respondent and in this way CFGE was a customer of the Respondent. CFGE was the sole customer of the Respondent in the wind turbine industry and the sole customer of the Respondent in relation to purchasing the bespoke parts for CFGE small wind turbines. At all relevant times, the Complainant spent 100% of his time working exclusively on the lathe producing wind turbine parts for CFGE. In early 2019, CFGE experienced a complete collapse in customer orders for its wind turbines. This had the knock-on effect of a collapse in orders for the wind turbine parts produced by Respondent for CFGE. CFGE ultimately entered a creditors voluntary liquidation, with a liquidator being appointed to CFGE at a meeting of creditors in April 2019. CFGE ceased trading and all parts orders from CFGE stopped. Many of the Respondents employees working on CFGE production were immediately affected. From March 2019 to November 2019, 24 of the Respondent’s employees engaged in CFGE production and associated activities either left voluntarily or were made redundant as a direct result of the liquidation of CFGE. The Complainant, however, was on certified sick leave from 14 March 2019 to 16 July 2019 and was, therefore, not immediately affected by the liquidation of CFGE. The Complainant returned to work on 16 July 2019. However, upon his return there was little to do beyond a couple of service-related exchange alternators. The Complainant and the other remaining employees in the CFGE production area were kept occupied cleaning and oiling the machines, painting benches etc, until the commencement of the Respondent’s annual two week shut down for holidays which began on 29th July 2019 and ended on 13th August 2019. Prior to the holiday shut down, the Liquidator of CFGE contacted the Respondent regarding a potential one-time parts order for 57 turbines to be sold by the Liquidator to Japan. In the event the Liquidator acquired this order (which he did), he would in turn order the required parts from the Respondent for the build of the 57 machines. However, it was clear there would be no further orders from the Liquidator beyond the parts required for the 57 machines. The CFGE liquidator finalised the sale for the turbines in mid-August 2019 and the Respondent immediately began manufacture of the required parts to the Liquidators order. Parts continued to be produced until the first week of November 2019 when all parts for the order had been fully produced. It was well known within the Respondent that after the completion of the orders for the Liquidator there would not be further work for those employees engaged in the production of parts for CFGE wind turbines. On 29 November 2019, with no further orders for turbine parts and no parts which could otherwise be produced on the lathe for any other customer, the Complainant received his 4 weeks’ notice of redundancy with payment in lieu. The Complainant’s severance date was 27th December 2019 and was subsequently paid his entitlements with the last payment occurring on 3 January 2020. After the receipt of his redundancy notice on Wednesday, 29 November 2019, there was no further contact whatsoever from the Complainant for a period of three weeks and 2 days from the date of notice. Then in an email of Friday, December 20, 2019 the Complainant, for the first time, expressed his disappointment at...