EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Employee UD2355/2011
against
Employer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr J. Flavin
heard this claim at Waterford on 1st August 2013
Representation:
Claimant:
The claimant in person
Respondent:
Neil Fitzpatrick, L & P Group, 2-3 Terminus Mills, Clonskeagh Road, Dublin 6
Claimant’s case
The claimant commenced employment with the respondent on 1st January 2007. Having been on maternity leave followed by sick leave the claimant returned to work on 1st November 2011.
On the same day she was called to the office and told by the C.E.O. that she was to be made redundant and given four weeks notice. A p45 was issued to her on 30th November 2011 and she signed a form RP50 in respect of her redundancy lump sum. However the claimant did not accept that this was a genuine redundancy situation and believed that her job is now being carried by participants of the C.E. scheme.
Respondent’s case
The respondent is primarily a voluntary organisation administered by a religious order. The claimant was a full time paid member of staff. However the respondent also employed staff under the Community Employment Scheme which is funded by the Department of Social Protection. The respondent was in constant financial difficulties and consistently sought way of increasing income and decreasing outgoings so as to continue to offer a service. The Chief Executive Officer was a non-paid position and he told the Tribunal that after the claimant left he took over some of her duties.
Another witness for the respondent, who was also an unpaid office holder told the Tribunal that he was responsible for other aspects of the claimant’s role and that he delegated these functions to persons engaged under the C.E. Scheme.
Determination
The Claimant returned to work having been on maternity leave to find that the termination of her position was essentially a “fait accompli”. There was no discussion or consultation and it was simply relayed to her that her employment was being terminated due to redundancy. When she sought to discuss the matter further with her supervisors the latter would not engage with her on the issue. She was given no right of appeal.
The Tribunal acknowledges that the Respondent was facing significant business challenges and that it’s Officers acted in good faith and in the belief that they were doing their best to ensure that the Centre would remain viable into the future.
However, the reality is that the role of the Claimant was not, in fact, redundant. Her duties were, instead, carried out following her termination by two Community Employment Participants who had in the main been trained by her.
A Community Employment Scheme must not be used to displace existing employees. The Tribunal is satisfied that this is what occurred in this instance.
The Tribunal agrees with the Claimant’s assessment that she was terminated because she could be replaced by CE participants.
The Respondent has failed to discharge the onus placed upon it by the Unfair Dismissals Acts 1977 to 2007 and, accordingly, the claim before the Tribunal is upheld.
The Tribunal awards the Claimant the sum of €8,000.00 in respect of her Unfair Dismissal. This sum is in addition to the ex-gratia payment already made to her by the Respondent on the 1st November 2011.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)