Employee of Tipperary company awarded damages for unfair dismissal

The Workplace Relations Commission has adjudicated on a case concerning a Tipperary Town-based company, B.R.C McMahon Reinforcement Ltd.

The complainant in the case was Frank Doheny and the respondent was B.R.C. McMahon Ltd.
The hearing took place before adjudicator Ewa Sobanska on August 31, 2023 and a decision was given in December 2023.
The complainant was seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act,1991 and was also seeking adjudication under section 8 of the Unfair Dismissals Act, 1997.

The adjudicator decided that the complainant was unfairly dismissed. She declared the complaint to be well founded and ordered the respondent to pay the complainant €27,775 which is approximately 17 weeks’ pay.
She also declared the second complaint to be well founded. She directed the respondent to pay the complainant €8,660.00 in respect to the outstanding bonus.

The complainant commenced his employment with the company on February 17 2014 as a Environmental, Health and Safety Manager.
He was paid €7,080.14 gross monthly (€84,961.68 per annum). The complainant’s employment terminated on September 12, 2022.

On January 19, 2023, the complainant referred the following complaints against the company to the Director General of the WRC Pursuant to the Payment of Wages Act 1991 alleging that the respondent has not paid him or paid him less than the amount due to him and pursuant to the Unfair Dismissals Acts 1977-2015 alleging that he was unfairly dismissed.
The respondent rejected the above claims.
Ms Anne O’Connell, on behalf of the respondent made the following submission.
The complainant’s employment was terminated with effect from September 12 2022 by reason of a genuine redundancy.

The respondent followed fair procedures at all stages, including seeking the complainant’s input and proposals to avoid the redundancy situation before any final decision was made. The complainant was also permitted to appeal the decision.
In relation to the Payment of Wages Act claim, the respondent submitted the complainant’s bonus was not ‘properly payable’. As the complainant’s employment had been terminated on 12 September 2022, it was not possible for the complainant to achieve his targets in September nor was he an employee at the time that the annual bonus would have been payable. The annual bonus for each year is only payable the following year and not before January. It was not payable on September12 2022 as alleged by the complainant.

In relation to the unfair dismissal it as also submitted that the complainant’s role was put at risk of being made redundant following a review, which identified the role as one which could be done more efficiently by being carried out by existing employees in addition to their existing work.

The review was conducted by a new Operations Manager, Mr Creegan, to identify and introduce necessary changes in the business to improve its efficiency. Mr Creegan had no personal knowledge or relationship with the complainant. Therefore, the review and the outcome of the review was impersonal and was to implement change. It is therefore submitted that this was a genuine redundancy.

It was submitted that the respondent followed fair and reasonable procedures in respect of the complainant’s redundancy.
Mr Treanor BL, on behalf of the complainant also made submissions.
The complainant was employed as a Health, Safety and Environmental Manager from 1February 17 2014 until 12 September 2022.

Without notice on August 15 2022 the complainant was informed that his role was at risk of redundancy. At this brief meeting the complainant was provided with a letter which states,
“The primary reason this redundancy is being considered is because the [Health, Safety and Environment] needs of the business have changed.”
On August 22 2022 the respondent met with the complainant to discuss the proposed redundancy. Mr Creegan (Operations Manager) stated in that meeting, without any certainty or evidence that “Other companies in the [construction steel industry] sector would probably have a much more junior H&S person.”

NEW RECRUIT
Also of note in this meeting was that there would be new recruit to the role of Production Manager when the current Works Manager retired. There was no official announcement of this role, nor was it advertised internally or externally. It was now being proposed that the incumbent Production Manager would take on some of the responsibilities that had been the duties of the complainant. The complainant was not informed that the creation of this role would ultimately lead to his role being made redundant. The complainant was not afforded an opportunity to apply for this role. It was also clear from this meeting that another role, incorporating the responsibilities of the complainant, was being created, though the respondent did not commit to any precise details of this plan when the complainant inquired.

On September 12 2022, without notice and without the opportunity to be accompanied, Mr Creegan summoned the complainant to his office and issued the determination that the complainant's role was made redundant.
The complainant appealed this decision. The appeal was conducted by Mr Stephen Mulhall, Finance Director of Derevoya Holdings Ltd.
The appeal was unsuccessful.