UD1305/2011, MN1411/2011, WT531/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr A-M Courell BL

Members:     Mr D. Morrison

                     Mr T. J. Gill

heard these claims at Castlebar on 12 March

           and 8 November 2013

Representation:

Claimant:

                    Mr Evan O’Dwyer, Crean, O’Cleirigh & O’Dwyer Solicitors,

                     Bridge Street, Ballyhaunis, Co. Mayo

Respondent:

         Mr Ronnie Lawless, IBEC, West Regional Office,

         Ross House, Victoria Place, Galway

The determination of the Tribunal was as follows:

The respondent has operated a commercial radio station since 1989. The claimant was employed as a news journalist from 1995 to 1997. He then left to pursue other interests before re-joining the respondent again as a news journalist in June 1999. The claimant became father of the chapel of the National Union of Journalists (NUJ) within the respondent. While it was common case that the claimant had been involved in some controversy over his reporting of some events related to the development of the Corrib Gas Field the employment was uneventful in a disciplinary sense.

From 2008 when the economic downturn began newsroom staff had been required to perform additional duties. At a staff meeting held in Kiltimagh in June 2010 managing director (MD) of the respondent highlighted the difficult trading conditions being encountered and gave a commitment that there would be no job cuts in 2010.

Nevertheless on 20 September 2010 MD wrote individual letters to all staff members in which he informed them of the even more adverse trading conditions which the business was now facing. MD stated that job cuts would have to be implemented and that this would be effected at the year end. It was proposed that there would be a voluntary redundancy scheme put in place whereby the respondent wished to reduce the number of staff in news and transmission by two. There were four staff members in news and a single staff member in transmission. The proposed terms of the voluntary packages were set out in some detail, including both statutory and ex-gratia components. In the event of insufficient volunteers the process was to move to a compulsory redundancy situation.

The timetable for applications for voluntary redundancy provided that applications for the scheme were to be made by 8 October 2010 with management committing to communicate acceptance or rejection of any application by 12 October 2010. In the event of insufficient voluntary redundancies management was to communicate compulsory redundancies by 28 October 2010 with formal notice no later than 5 November 2010 with an agreed departure date of 31 December 2010.

In the event the staff member in transmission accepted the voluntary severance package. The claimant called a meeting of the NUJ chapel and, as none of the journalists was prepared to accept the terms on offer, then sought enhanced severance terms from the respondent.

On 27 September 2010 at a time when MD was out of the country there was an email exchange in which the claimant sought a detailed breakdown of the voluntary package. MD undertook to comply with this request and emphasised that he was only a phone call away. The financial controller (FC) of the respondent was copied in on the email from the claimant

Whilst some minor concessions were made in respect of the voluntary package no agreement was reached with the claimant who met MD on both 11 October and 3 November 2010. The respondent’s position was that by this time the claimant had been identified as the candidate for redundancy and that MD was attempting to negotiate with the claimant to accept a voluntary package with the possible option of then becoming a contractor with the respondent.

Later on 3 November 2010 MD sent the claimant an email in the following terms

“Hi Liamy,

It will be tomorrow before I can give you details in relation to Redundancy details. FC is in Dublin and I don’t have the exact details so its (sic) best to hold off until Friday.

I can assure you this situation is very difficult for me and indeed for you and you can be assured I will do all I can to make it as painless as possible. The reality is however as outlined to you at our recent meeting.

I will forward details by lunchtime Friday.

Regards

MD”

On Friday 5 November 2010 MD wrote to the claimant to tell him that as he had not accepted the voluntary redundancy package he was now being informed that he was to be made compulsorily redundant with effect from 31 December 2010.

Determination:

The Tribunal is satisfied that because of the ongoing economic climate there was a genuine redundancy situation existing in the respondent. The Tribunal accepts the evidence of MD that he was attempting to negotiate with the claimant to accept a voluntary package. No evidence was adduced by the respondent as to why or how the claimant became the target for redundancy either voluntary or compulsory. Nevertheless the Tribunal does not accept the contention of the claimant that he was somehow targeted on account of any controversies that may have arisen arising from the carrying out of his journalistic duties. Once it became clear to the respondent, as it must have on or around 3 November 2010, that the claimant was not going to accept a voluntary package then there was an onus on the respondent to apply objective criteria to the selection of a candidate for compulsory redundancy. No evidence was adduced to show the reason for the claimant’s selection. MD’s evidence was that he did not know how the claimant had been selected as the candidate. FC’s evidence was merely that the selection was done by the assessment of management. There is a total lack of clarity about this approach and it clearly betrays a lack of objectivity. In such circumstances the Tribunal cannot be satisfied that the selection of the claimant as the candidate for redundancy was not unfair. It follows that the dismissal was unfair, having noted that the claimant at all times refused to accept any of the monies proposed by the respondent in respect of the redundancy situation the Tribunal measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €47,000-00.

The claimant was given formal notification of the termination of his employment in the letter from MD of 5 November 2010. He was paid until 31 December 2010. His continuous employment with the respondent began in 1999. Accordingly, he was entitled to six weeks’ notice. The letter of termination provided in excess of the statutory entitlement to notice. It follows that the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 must fail.

No evidence having been adduced in this regard the claim under the Organisation of Working Time Act, 1997 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)