RP121/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                              CASE NO.

EMPLOYEE – appellant                                                                                            RP121/2012

against

EMPLOYER– respondent

EMPLOYER – respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms O. Madden BL

Members:        Mr L. Tobin

                        Ms M. Maher

heard this appeal at Dublin on 7^th May 2013

Representation:

Appellant:       In Person

Respondent:   

The determination of the Tribunal is as follows:

Respondent’s Case

The director gave evidence. The respondent is a retail furniture business with a franchise from a French manufacturer. The appellant was a sales assistant. Every month the director sits down with each member of staff to discuss their sales for the previous month.

The director met with the appellant on 6 October 2011 and she apologised for her poor sales. The appellant offered to resign but the director felt that he would support her and help her to overcome her difficulties in closing sales.

On 8 November 2011 the director had another meeting with the appellant. October is an important month in furniture sales. He was disappointed.

Her sales figures had not improved. The appellant’s sales were poor in comparison with her colleagues. She had been given the same sales material as her colleagues. The director thought that perhaps the appellant was not suited to retail sales. The director felt that he had a mutual agreement with the appellant following the previous meeting that allowed him to dismiss her for poor performance.

The appellant was replaced and her replacement achieved better sales from the start. The director wrote the appellant a letter saying she had been let go due to a downturn in business to facilitate her in claiming social welfare benefits. He was subsequently shocked when she sought redundancy payment.

Appellant’s Case

The appellant gave evidence. She met the director informally in 2009 through a client she has done interior design work for. She was offered a part time position. Because of her design experience she produced designs and elevations for customers and also did consultations for them. She went on a training course to France in 2010.

The appellant liked her job. When the recession started there was pressure to make more sales. The director constantly told staff to up their game. She felt the stress.

The October meeting was very informal. She was called in for a chat and there were no documents. The director asked her if everything was ok. She said she felt under pressure but did not go into specific details. The appellant said that it was up to the director to decide whether she went. He said absolutely not, because he was happy with her and was not intending to let her go. She left the meeting with the impression that she needed to increase her sales but no review meeting was arranged.

The appellant was on leave for a week at the end of October. When she returned the atmosphere was tense. The director called her to a meeting at which he produced all the documents. He told her that he had decided to let her go. She had not expected this. All the sales staff were off target not just her. She was given the option of leaving then or working until the end of the month. She decided to work on.

She had no thought of appealing for a redundancy payment until she went to claim social welfare. She was asked if she had been paid redundancy. She asked the director for redundancy but he told her that she was not entitled to it. The director’s letter to her said that she had been let go due to a downturn in business.

Determination

The Tribunal carefully considered the evidence adduced. The Tribunal accepts the respondent’s view that the appellant was dismissed on the basis of performance issues. Also she was replaced soon after her dismissal. However, the Tribunal was surprised that the respondent did not follow any procedures in dealing with the appellant’s performance issues. She was not given written notice of the meeting of 6 October 2011. It would be expected that a reasonable employer would write to an employee and inform her that her job was in jeopardy unless her performance improved and giving her a clearly defined time period in which to make the required improvements.

The Tribunal finds that the appellant’s employment did not terminate as a result of a redundancy situation. Accordingly the appeal under the Redundancy Payments Acts 1967 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)