EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE -claimant UD1627/2011
Against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Mr G. Andrews
Mr J. Flavin
heard this claim at Limerick on 29th May 2013
and 16th July 2013
Representation:
_______________
Claimant:
Respondent: ,
Respondent’s Case
The respondent accepted that the claimant commenced employment with another company on 30th May 2005 and that there was a Transfer of undertakings from that company to the respondent on 20th December 2010.
The claimant had been employed by the 1st company in a position that the respondent had no requirement for and therefore that position was to become redundant. The respondent had other positions available which the claimant applied for. However there were seven applicants for these positions and only five posts were available. Having completed an interview process the claimant was unsuccessful in her application for one of these posts. The respondent offered the claimant an alternative position but she rejected this on the basis that it was too far from her home and the respondent was left with no alternative but to terminate the claimant’s employment on the basis of redundancy. The claimant was paid a redundancy lump sum in accordance with the Redundancy Payments Acts, 1967 to 2007.
The respondent considered a proposal by some employees, including the claimant, that staff be put on a four day week as an alternative to redundancies. However the witness for the respondent was not sure if all the staff were in favour of this proposal and brought it to the board of management who rejected the idea. There was only one witness for the respondent and she told the Tribunal that she could not say if there was any consultation with the employees before the respondent made the decision to make redundancies.
Claimant’s Case
In 2005 the claimant was employed by a charitable organisation as the project co-ordinator for the Citizens Advocacy Project. The claimant’s employment was transferred directly to the respondent as of the 20th of December 2010.
The advocacy programme was initially provided only for users of the charitable organisation. As part of the claimant’s role she sourced volunteer advocates to match them with service users of the organisation; by the end of the programme there were 22 people volunteering as advocates. Her role also included administration, management and the P.R. of the project. This also entailed sorting out any problems in the advocate/service user relationship.
The claimant was not an advocate; her qualifications are in management. There is an advocacy course commencing every September but for the claimant’s role it did not make sense to attend it. A decision was taken early in the project that the project manager could not function as an advocate. The dual function would hinder the independence of the manager and prevent her from being seen as unbiased in any conflict resolution situation. There were only 3 situations throughout her employment where she performed the functions of an advocate.
In October 2010 the claimant discovered that her role with the charitable organisation was being made redundant and amalgamated into the respondent. The respondent is a statutory body which supports the provision of information, advice and advocacy on a broad range of public and social services. A presentation was given to all staff concerned in the region at a meeting at the end of October 2010. The presentation outlined the new amalgamated structure of the respondent; this was not part of a consultation process or connected with the possibility of a future redundancy.
On the 17th of December 2010 the claimant received a contract from the respondent. As of the 20th of December 2010 the claimant was unilaterally transferred to the respondent as an advocate and not a project manager. She noted the discrepancy on her contract stating, ‘This contract is signed pending further discussions. I am signing the contract to facilitate my transfer to (the respondent) but I do not accept the terms of the contract.’ The claimant phoned the respondent but the response was inadequate and did not resolve any queries. The claimant continued to act as an advocate until her redundancy in March 2011. It transpired that in December 2010 the claimant was transferred into a position that did not exist.
The staff had a meeting in January 2011 as they were so concerned over the lack of consultation throughout the transfer process. A proposal was drawn up on the details of the re-structure and presented to the respondent. It was acknowledged and responded to.
The respondent had now been amalgamated with a number of advocacy projects and had been restructured. They needed to make redundancies so commenced an interview process for all the staff for the advocate positions. The claimant attended the interview on the 3rd of February 2011. By letter of the 11th of February 2011 she was informed that she was unsuccessful in securing the advocate position and was therefore being selected for redundancy.
The claimant was the only project manager who attended the interview and the only person without an advocacy qualification. This put her at a serious disadvantage in the scoring process as one of the selection criteria was education specifically in ‘social sciences, humanities, law, training and development OR advocacy qualification,’ this criteria carried 20 marks. The claimant had no prior knowledge of the selection criteria or the scoring system.
The claimant gave evidence of her loss and her attempts to mitigate her loss.
Determination
The Tribunal has carefully considered the evidence in this case. In the first instance the claimant should have transferred in her position as a project manager to the respondent. There was a lack of clarity and information provided to the claimant regarding this transfer and her employment status, no meaningful consultation took place. This resulted in the claimant transferring to a position and later interviewing for a position she was not qualified to be in.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and award the claimant €20,000 in compensation in addition to the redundancy lump sum already received.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)