UD545/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

                                                                                                                        UD545/2012

Employee       -          claimant                                              

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO2007

 I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. D. Mac Carthy S C

Members:        Ms A. Gaule

                        Mr. J. Jordan

heard this claim at Dublin on 1st July 2013

Representation:

Claimant: Ms Bernie Thornton, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent: Ms MP Guiness BL, instructed by Kane Touhy Solicitor,

Kane Tuohy, Solicitors, The Malt House North, Grand Canal Quay, Dublin 2

Background:

The respondent is a transportation company and the claimant worked for the respondent as a loading bay operative (LBO). The claimant contends that he was unfairly selected for redundancy. The respondent contends that they had to implement cost cutting measures since 2009. Regrettably this resulted in redundancies in many parts of the business during 2010 and 2011. A further redundancy situation arose affecting the LBOs in the express side of the business. “Express” is a reference to the “express network” of routes that the respondent services and is the area of business in which the claimant worked.

Following a consultation process, the claimant was selected for redundancy by reference to a selection criteria matrix from the pool of LBOs. The claimant’s employment was terminated by reason of redundancy following due process on the 01^st July 2011.

Claimant’s case:

The claimant gave evidence to the Tribunal that two managers arrived at the depot in or around May June 2011.   Because he was the shop steward they called him into the office to say that there would be three redundancies. They told him that it would be done on a point system and he challenged the point system method because he thought it should be LIFO (last-in-first-out). The system was not explained to him. He left the office and sent the four other employees into the office because the managers wanted to speak with them.   Some days later he was given the results and was told that he was in the bottom three on the score sheet. He saw the score sheet on 29^th June three days before he was let go.

The claimant gave evidence as to the criteria used in the score sheet, Work performance, Attendance record, Adaptability and Change and Disciplinary record amongst other things.

The claimant appealed his dismissal.   His appeal was rejected by the general manager for employee relations.

In answer to clarification requested by the Tribunal the claimant did not know if there was custom and practice regarding redundancies.

It was the claimant’s contention that his job was still there, that he was involved in pay talks at the time. Also he was involved in a grievance procedure at the time.

Respondent’s case:

The Tribunal heard evidence from a witness for the respondent who is the national operations quality manager. He was one of two people tasked with redundancies. He was not aware that the claimant was involved in a grievance process or that the claimant had a grievance. No one told him that the claimant had a grievance process on-going. He heard about this after the scoring for redundancy had been done. There were three redundancies after that.

In cross-examination the witness explained that he was no aware of an increase in hours for employees after the redundancies. He agreed that they did employ agency workers on weekends as required.  

In answer to clarification requested by the Tribunal the witness explained that before the redundancies they employed four or five agency workers at the weekends and after they employed three or four.

The Tribunal heard evidence from another witness who worked in the respondent since 1999. He had a meeting on 26^th June with the claimant. He explained the selection criteria to the claimant “line by line”. He explained this to the claimant because he was the shop steward. The witness re-iterated that he explained the criteria to the claimant “line by line”. The claimant did mention to him LIFO, but he reminded the claimant that that had changed.   Regarding using agency staff it was in the nature of the business.

In cross-examination he explained that he would be surprised if he did not give the claimant a copy of the criteria that they used but it was available to all of the twenty-six LBOs

In answer to clarification requested by the Tribunal the witness explained that the selection method used was in place since 2009, he did not know how they were selected before then. From 2009 to 2011 twenty-four people were made redundant; four of these were managers of which one was a general manager and operational staff.

Determination:

The Tribunal determines that a genuine redundancy situation existed in the respondent company.

The Tribunal, by majority, determines that for the purposes of selection for redundancy the claimant was treated fairly and equally to his work colleagues.

The Tribunal by majority determine that the claim under the Unfair Dismissals Acts, 1977 To 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)