Case Number: ADJ-00030831. Workplace Relations Commission

• Judgment Date: 01 August 2021
• Court: Workplace Relations Commission
• Docket Number: ADJ-00030831
• Respondent: Pat O'Donnell & Co

ADJUDICATION OFFICER DECISION. Adjudication Reference: ADJ-00030831 Parties:

	Complainant	Respondent
Parties	Paul Dunican	Pat O'Donnell & Co

	Complainant	Respondent
Anonymised Parties

Representatives Self. Thomas Ryan, Peninsula.

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041112-002	18/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00041112-003	18/11/2020

Date of Adjudication Hearing: 13/07/2021

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was engaged as an area Sales Manager in the Respondent organisation, he commenced employment on 15th April 2019. His position was made redundant on 20th July 2020 and he was placed on Gardening Leave until the 20th October 2020. This complaint was received by the Workplace Relations Commission on 18th November 2020. Prior to the hearing of the complaint the parties were provided with a verbal summary of the Supreme Court judgement in Zalewski v Adjudication Officer and WRC [2021] IESC 24. Both parties opined that the hearing could proceed as it was doubtful if any conflicting evidence would be heard during the hearing of the complaint.

Summary of Respondent’s Case:

CA-00041112-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 Background: 1. The Complainant was engaged as an area Sales Manager. 2. The Complainant was taken on as a salesperson to sell products for two suppliers – Supplier 1 and Supplier 2 (Predominantly Supplier1). 3. The Complainant commenced employment on the 15th April 2019; 4. Irreconcilable differences arose between the Respondent and one of the suppliers – Supplier 1 causing the Respondent to cease doing business with this supplier; 5. The potential market for Supplier 2 alone would not solely sustain a salesperson in employment. 6. The Respondent denies that the Complainant was promised (at interview stage) that he would be kept on in employment if the product he was selling failed to sell and that he would given alternative work; 7. The Complainant was paid an annual salary of €60.000; 8. The Complainant’s position was made redundant on the 20th July 2020 and he was placed on Gardening Leave until the 20th October 2020; 9. The Complainant has taken a case under the Payment of Wages Act 1994, claiming a deduction in wages of €1,310. A Revenue Deduction of €1,310 was made by Revenue due to the fact that there was no mileage submitted by the Complainant; 10. The Complainant has taken a case under the Organisation of Working Time Act 1997 claiming that he was promised seventeen days annual holidays. Pro rata the Complainant was entitled to 17.5 days, less seven days holidays taken in 2020. The respondent accepts that the Complainant is entitled to 10.5 days annual holidays. Dismissal / Redundancy. The Respondent refers to section 6(1) of the 1977 Act which states as follows: “(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Specific emphasis is placed on the words “having regard to all the circumstances”. On a point of law, therefore, it cannot be the case that a procedural flaw alone can render a dismissal unfair as a court or tribunal must have regard to all the circumstances. The Respondent refers to the judgment of the Circuit Court in Elstone -v- CIE (13 March 1987, unreported) where it was determined as follows: “That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6(1), that regard must be...