Case Number: ADJ-00010356. Workplace Relations Commission

• Docket Number: ADJ-00010356
• Date: 01 January 2018
• Court: Workplace Relations Commission
• Parties: Sales Representative v A Security Company

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00010356

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00013776-001 06/09/2017 Date of Adjudication Hearing: 10/11/2017 Workplace Relations Commission Adjudication Officer: Marian Duffy

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and 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 was employed by the respondent as a sales representative from 8th of November 2010 until his employment terminated on 16th December 2015. The payment of a redundancy lump sum is in dispute.

Summary of Complainant’s Case:

The complainant said that he was invited to a meeting with the respondent on the 27th of November 2015 and he was told that his job was at risk of redundancy. He was told to reflect on it over the weekend and to think about where he might fit in. On the 1st of December, he had a further meeting with the management of the respondent company and he was advised that his job was redundant and a redundancy package was discussed with him. He was asked to leave immediately and to hand over the company possessions and was informed he would be paid for the following month. On the 4th of December, the complainant received a letter informing him that the consultations about redundancy were suspended and that he was now under investigation into allegations of misconduct. The complainant was called to a disciplinary hearing and his employment was terminated on the 16th of December 2015. The complainant referred an unfair dismissal complaint to the WRC. The adjudication officer found that the complainant had been unfairly dismissed and awarded compensation. The complainant’s solicitor submitted that he is entitled to a lump sum in respect of his redundancy. The initial notification that his job was at risk of redundancy was given on the 27th of November and it was confirmed when the complainant was notified on 1st of December 2015 that he was dismissed for reasons of redundancy and that he would be paid a month’ notice.

Summary of Respondent’s Case:

The respondent submitted that in late 2015 the company conducted a review of its operations and concluded that there was insufficient work for the two sales representatives employed in the company. Because the complainant had shorter service than the other sales representative, he was called to an at risk meeting with management on Friday the 27th of November 2015. He was notified of the decision to reduce the sales positions and as a result of this decision, he was informed that he could be declared redundant. A further meeting was arranged with the complainant on Tuesday the 1st of December 2015, as there was no alternative employment available for the complainant he was informed that he would be declared redundant and the necessary paperwork would be organised by the Financial Controller. Following this meeting the company discovered that the complainant had deleted some information from the computer system. The complainant wrote to the company on the 3rd of December regarding the redundancy package. In a letter of the 4th of December 2015, the complainant was informed that the redundancy consultations were suspended until further notice and that there was an investigation being carried out into the unauthorised removal of the company information from the computer system. The complainant was dismissed following an investigation for gross misconduct. The dismissal was referred to the WRC and the Adjudicator found the dismissal unfair and awarded compensation which was reduced by a factor of 50% due to the actions of the complainant. The respondent submitted that the complainant, in accepting the unfair dismissal decision by the adjudicator, is bound by the finding of that decision. In that regard the adjudicator found that the dismissal was unfair and awarded compensation in accordance with section 7 of the Unfair Dismissals Act which was reduced by 50% because of the complainant’s conduct. The adjudicator said that in his opinion neither reinstatement or reengagement were appropriate remedies. Therefore, the company contends that the finding of the Adjudicator was the employment was ended, albeit that it was an unfair dismissal and that any future loss, which must include the loss of possible redundancy payments, was compensated accordingly. The adjudicator had an option to reinstate or re-engage the employee and put the employee in the same position as he would have been had he not been unfairly dismissed. The respondent also submitted that the employer had not made the complainant redundant and the conversations they had with the complainant regarding his position were a consultation process. It was also submitted, that a notice in writing in accordance with Section 17 of the Redundancy Acts must be given by the employer to the employee who is being made redundant, and no notice of the exact date of the redundancy was given to the complainant. Therefore, the claim under the Act must fail. The respondent had not advised the complainant of the date he would be declared redundant nor is there any documentary evidence that there had been a date set for the redundancy. In order for the complainant to rely on the Redundancy Payments Acts, he must establish that on the date of his dismissal he was entitled to be paid redundancy and the facts clearly show he did not have any such entitlement. The letter of the 4th of December 2015 to the complainant clearly states that no date had been set for the redundancy and that further discussions on redundancy were suspended. I was also submitted that the claim for redundancy was referred outside the statutory 52 weeks and the complainant has not shown reasonable cause to extend the period for referring a claim to 104 weeks.

Findings and Conclusions:

I note that on the 27th of November 2015, the complainant was told his position was at risk and this was confirmed in writing. It is clear that at a meeting on the 1st of December 2015, the complainant was informed that his position was redundant. He was told to leave the premises immediately and he would be paid for a month and was asked to hand over the company possessions. I am satisfied from the evidence that the complainant was given a month’s notice and was notified that his position was redundant at the meeting of the 1st of December 2015. However, before the statutory redundancy lump sum was paid, the complainant was dismissed for gross misconduct and a claim for unfair dismissal was made to the WRC. The Adjudicator in ADJ-00002052 found the decision was unfair and awarded compensation for unfair dismissal. Section 14 of the Redundancy Acts provides: “ an employee who has been dismissed shall not be entitled to redundancy payment if his employer, being entitled to terminate that employee’s contract of employment without notice by reason of the employee’s conduct, terminates the contract because of the employee’s conduct— (a) without notice, (b) by giving shorter notice than that which, in the absence of such conduct, the employer would be required to give to terminate the contract, or (c) by giving notice (other than such notice as is mentioned in subparagraph (b)) which...