Case Number: ADJ-00007704. Workplace Relations Commission

• Docket Number: ADJ-00007704
• Hearing Date: 12 January 2018
• Date: 01 July 2018
• Court: Workplace Relations Commission
• Parties: Project Manager v A Horticulture Company
• Respondent: A horticulture company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007704

Parties:

	Complainant	Respondent
Anonymised Parties	A Project Manager	A horticulture company

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00010335-001	21/03/2017

Date of Adjudication Hearing: 12/01/2018

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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.

Background:

The complainant asserts that he was unfairly dismissed by the respondent. The respondent denies the claim, asserting that the complainant did not have one year’s service and was made redundant.

Summary of Respondent’s Case:

The respondent outlined that the fact of dismissal is not in dispute. It submitted that the complainant did not have the service required to bring a claim. It submitted that the employment commenced on the 2nd February 2016 and referred to a sheet signed by the complainant. This sheet is signed by employees on their first day of employment. The complainant was given one week’s notice on the 24th January 2017, ending on the 31st January 2017. It referred to the P45, which gives the date of cessation as this date. The respondent outlined that the complainant’s role involved managing contracts and seeking new business nationally and internationally. The complainant initially billed as a contractor and later worked as an employee. The respondent’s turnover dropped to €1.3m and the complainant and other employees were made redundant. The complainant’s role was not replaced. As the job no longer existed, it was entitled to rely on section 7(2)(e) of the Unfair Dismissals Act and the decision of McArdle v Oxygen Environmental (UD 657/2015). The Managing Director gave evidence. At the time the complainant started, the respondent had many contracts and the respondent needed help in this area. Later, there was a slowdown in the pipeline of work and they were not making profit. The company was losing money, €45,000 in the previous year, and they had to reduce outgoings. The complainant was the only one in a project management position and the Managing Director took over the role. The Managing Director said that the redundancy process was a verbal one. He had weekly project management meetings with the complainant. He spoke to the complainant about the seriousness of the situation and mentioned the other redundancies. The respondent had about 15 staff and over six months, it lost six or seven people. The respondent applied ‘Last In, First Out’. The complainant was the last in. The Managing Director gave the complainant an excellent reference and rang other businesses on his behalf. The Managing Director gave the complainant one week’s notice on the 24th January 2017. In cross-examination, the Managing Director accepted that the only signed document was dated the 18th February 2016 and this was when the complainant filled in the sheet. It was put to the Managing Director that the complainant started on the 1st February 2016 and had invoiced the preceding Friday; he replied that the complainant submitted many invoices including up to the 29th February 2016. It was put to the Managing Director that the invoice of the 29th February 2016 related to the purchase of machinery and not to work, the last invoice for work was the 31st January 2016; he replied that he only had one definitive signed document. He rejected that the complainant started on the 1st February 2016. The Managing Director accepted that he incorporated two new companies in June 2016. He said that while there was still work in 2017, this was on a massively reduced scale. It was clear all the way through 2016 that it was not going well. The Managing Director referred to the complainant losing an Irish client. It was put to the Managing Director that he never told the complainant that his position was under threat or used the word “redundancy”; he replied that he mentioned lots of times that jobs were under threat. He had said that they had to have redundancies or they would all be out of work. It was put to the Managing Director that he had not mentioned pay cuts or changing the complainant’s role; he replied that in late 2016, they discussed changing work roles and they looked at many options. The Managing Director was desperate to keep the complainant in a job and they did not have an actual discussion about him doing manual work. It was put to the Managing Director that there was no formal redundancy process and no agreed selection procedure; he replied that they applied LIFO. It was put to the Managing Director that the P45 states the 3rd February 2017 as the end date; he replied that he had not seen this document before and the one he had stated the date as the 31st January 2016, a clerical error. It was put to the Managing Director that the 3rd February 2017 was the agreed handover date and there was a handover meeting on the 6th February and an email on the 7th February; he replied that the complainant finished on the 31st January and any high-level professional would tidy up. It was put to the Managing Director that there were text messages and emails of early February; he did not accept that the complainant worked until the 6th February 2017. In closing comments, the respondent submitted that the company was in trouble and the Managing Director took over the complainant’s role. It was clear that there was a weak pipeline. Others were made redundant and they had a good relationship. While there was no redundancy procedure, the complainant was a senior manager and knew of the financial constraints.

Summary of Complainant’s Case:

The complainant initially worked for the respondent as a sub-contractor, through his own horticulture company. As this role increased to 20 or 30 hours per week, he agreed to become an employee of the respondent. The respondent bought the assets of the complainant’s company. The complainant’s last work invoice as a contractor is dated the 31st January 2016. The complainant outlined...