EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
UD2005/2011
Employee - claimant RP2585/2011
MN2035/2011
WT794/2011
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 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: Mr. G. Hanlon
Members: Mr. P. Pierce
Mr. F. Keoghan
heard this claim at Dublin on 12th March 2013
Representation:
Claimant: Mr. Patrick O’ Brien BL instructed by Ms Olive Moore solicitor
Patrick Tallon & Co. & Co, Solicitors, The Haymarket, Drogheda, Co. Louth
Respondent: Mr. Brian O'Sullivan, Ir/Hr Executive, Ibec, Confederation
House, 84/86 Lower Baggot Street, Dublin 2
Mr Gerard Hughes, Grant Thornton, 24-26 City Quay, Dublin 2
Background:
The claimant is making a claim that he was unfairly dismissed by reason of redundancy.
The respondent (also known as GS) in this case is a named individual. He is the owner / has a mortgage of a shopping mall and public house/ off licence. The shopping mall has tenants, one of which is a large national grocery and clothes outlet the others are a chemist, a butchers, a newsagent, a phone/ communications shop plus other various outlets. The public house is attached to the shopping mall as is the off licence. The shopping mall is distinct from the off licence and public house.
The claimant has a background as a business consultant. He was the right hand man of GS. The manager of the off licence reported to him as did the pub manager and shops managers. The maintenance manager and admin staff also reported to him. He had recruited the vast majority of those staff. The claimant gave evidence as to the complex ownership/ management structure of the various aforementioned entities. The claimant liaised with the banks and with GS.
The evidence is common case excepting the evidence of the meeting when the dismissal took place. The respondent was in an extremely difficult financial position. GS and the claimant had a high profile meeting with the bank/ mortgage lender and the position of the bank was to impose strict financial constraints and rules on the respondent. The respondent had to comply with the strict rules.
The claimant and GS returned to the office after the meeting with the bank. The claimant contends that GS handed him a letter. The letter outlined that he was redundant. The claimant contends that GS told him “I know what you said, I know what you said”. This he understood to mean that he had said something in private to the bank officials that he should not have said. The claimant contends that no discussion took place prior to this regarding redundancy.
The respondent disputes that evidence he contends that the claimant accepted his redundancy and told him that he knew that his redundancy “was coming”. He had been close to the claimant and he had paid the claimant for six months while the claimant was out sick and had visited the claimant in hospital. The respondent in cross-examination explained that the claimant was made redundant because he was the highest earner. Also haven spoken to the bank manager he had to be more hands –on he had to “get his feet under the desk”. He did not dismiss the claimant because of something he was to have said to a bank official caused difficulty.
Determination:
There is evidence that the claimant made people redundant or informed people that their positions were redundant. There was evidence that there were wage cuts across the company. The claimant had attended the meeting with the bank and knew the precarious financial situation that the company was in. The Tribunal determines that a genuine redundancy situation existed and that the claimant was fairly selected. The claim under the Unfair Dismissals Acts, 1977 To 2007, fails.
Accordingly, the claim under the Redundancy Payments Acts 1967 to 2007 succeeds. The Tribunal awards the claimant a redundancy lump sum payment based on the following:
Date of birth: 26th July 1961
Date of commencement: 04th May 2007
Date of termination: 09th September 2011
Gross weekly pay: €1,730.77
A statutory weekly ceiling of €600.00, applies to payments from the Social Insurance Fund.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
The claim under the Organisation of Working Time Act, 1997 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)