Case Number: ADJ-00006203. Workplace Relations Commission

• Docket Number: ADJ-00006203
• Hearing Date: 10 August 2017
• Date: 01 October 2018
• Court: Workplace Relations Commission
• Parties: An Employee v A Community Development Co.

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act 1991, Section 8 of the Unfair Dismissals Act 1977, Section 39 of the Redundancy Payments Act 1967, Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 and Section 11 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaints 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.

Background:

At the outset of the hearing, the Representative of the complainant confirmed that the only matters for adjudication are as follows: CA-00008428-001 Payment of Wages Act 1991 CA-00008428-002 Unfair Dismissals Act 1977 All other matters were withdrawn. The Complainant contends that the Respondent acted in contravention of the Payment of Wages Act 1991 by laying him off in January 2016. The Complainant further contends that he was unfairly dismissed in May 2016 by reason of redundancy and that his selection for redundancy was unfair and not in accordance with fair procedures.

Summary of Respondent’s Case:

At the outset of the initial hearing of the matter, the Respondent raised a preliminary point regarding the lodgement by the complainant of a personal injuries claim, resulting in duplication of proceedings and the consequent potential double recovery regarding the Complainant’s losses under the Unfair Dismissals Act. A second preliminary issue was raised in relation to the Payment of Wages Act regarding the statute of limitations.

Preliminary Issues

In relation to the claim of unfair dismissal:

The Complainant was invited to a meeting on 13th October 2014 where he was informed that he was “at risk” of redundancy. Following a number of subsequent meetings, the Complainant was informed on 19th April 2016 that his role was to be made redundant following the expiry of his notice period on 31st May 2016. On 29th September 2016, the Complainant lodged “Form A” with the Personal Injuries Assessment Board (PIAB). Under the Special damages section, the Complainant has claimed a loss of earnings of approximately €55,000. These losses are claimed from 13th October 2014 to the date of the form and ongoing. On 11th November 2016 the Complainant then lodged the present complaint under the Unfair Dismissals Act and the Payment of Wages Act.

It is argued that the personal injuries claim represents a duplication of proceedings, and it is submitted that both sets of proceedings cannot proceed and that one set must be withdrawn. Case law was submitted in support including Parsons v Iarnrod Eireann [1997] 2 IR 523, Johnson v Unisys Limited [2001] 2 All ER 801. The case of Henderson v Henderson is well established and has been applied by the WRC and Labour Court on numerous occasions. In relation to the case of Culkin v Sligo County Council [2017] IECA 104, Hogan J. stated that the focus of Henderson was on relief which might have been obtained in the first set of proceedings and the plaintiff could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in one set of proceedings. It is argued that there are distinguishing factors between Culkin v Sligo County Council [2017] IECA 104 and the present case. Culkin involved alleged duplication of Personal Injury and proceedings under the Employment Equality Acts. In the present case, there is no impediment to the Complainant bringing their case in the first set of proceedings (the High Court proceedings).

In relation to the claim under the Payment of Wages Act 1991, it is argued that in light of the date of lodgement of the claim papers, the relevant period for the purposes of the claim is from 12th May 2016 to 12th November 2016. As the Complainant was employed from 12th May 2016 to the expiry of his notice period on 31st May 2016, it is submitted that this is the operative period for the claim. The Complainant has alleged that he was not on a period of lay-off at this time and consequently the non-payment of wages is a contravention of the Act. Throughout the relevant period the Complainant was on his notice for which he was paid in full. As such the claim is denied. The period on which the Complainant was on lay-off fell between the 21st January and 19th April 2016. The Complainant’s application for an extension of time should be rejected. The reasons advanced that is (i) the complainant’s appeal was finalised on 16th June 2016 and (ii) the interplay between the Complainant’s personal injury, unfair dismissal and debt recovery complaints created a complex situation requiring extensive legal considerations should be rejected. It is argued that the first alleged breach of the Act occurred in January 2016, some ten months prior to the lodgement of the claim. Following the Complainant’s return from sick leave on 21st January 2016 he was placed on unpaid lay-off. Correspondence between the parties indicated that the Complainant’s representative clearly stated that he believed such deductions to be unlawful. The Complainant was aware of the alleged breach some ten months prior to the lodgement of the claim and it is submitted that the reasons do not constitute “reasonable cause”.

Substantive issues

Payment of Wages

Regarding the substantive issues it is argued that the Employee Handbook provides for Lay-off and that in the event that reasonable cause is accepted to extend the period of time, the Complainant was not due payment for any lay-off period.

Unfair Dismissal

In relation to the claim of unfair dismissal, it is contended that the Complainant was made redundant following a process of examination of the financial situation which dictated that the Complainant’s role had to be subsumed into the CEO’s role. Substantial losses were being incurred in the area in which the Complainant was involved. The rationale for redundancy was discussed by the Board in September 2014 and the losses incurred in 2013 were noted as a serious financial risk. The area the Complainant was responsible for contributed significantly to the loss. The Complainant’s position was identified as redundant and the redundancy process commenced. The Complainant was issued with an “at risk” of redundancy letter on 29th September 2014. Subsequently meetings were held with the Complainant and his Trade Union representative in October 2014. The Complainant commenced a period of sick leave on 13th October 2014 and returned to the workplace in January 2016. The consultation regarding redundancy continued in early 2016 however the Complainant failed to attend meetings and following his non attendance at the meetings called for 4th and 11th April 2016 he was advised by way of letter dated 19th April 2016 of the decision to make his position redundant. An appeal was offered and the appeal hearing held on 12th May 2016. The Complainant’s position was confirmed as redundant. It is argued that this was a genuine redundancy aimed at stemming losses in the company and that it in no way constituted an unfair dismissal.

Summary of Complainant’s Case:

In addressing the preliminary issues, the Complainant’s Representative outlined submissions, summarised as follows: ...