EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE , UD2063/2011
-claimant RP2637/2011
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Kearney BL
Members: Mr. J. Hennessy
Ms S. Kelly
heard this claim at Thurles on 30th April 2013
Representation:
Claimant:
Respondent:
Background:
The claimant was a grounds man and the respondent is a greyhound racing stadium. The claimant contends that there were two grounds men/ hare runners employed by the company of which he was one and DM being the other. Another person (PS) who was a part time employee would cover for the claimant or DM if they were ill or on holidays. He would have been considered the senior hare runner. He was told the he was being let go because the respondent decided to employ only one grounds man/ hare runner. After he was made redundant P took over DM’s job on a full time basis and DM took over the claimant’s job on a full time basis. The respondent used redundancy as an excuse to unfairly dismiss him. The claimant contends that the respondent did this after hearing totally unfounded rumours from other employees that he was leaking information about dogs running times.
The respondent contends that the claimant was unfairly dismissed and the dismissal was because of redundancy. The respondent suffered a significant downturn in business for 2010 and 2011. The respondent was the only race track that employed two full time general operatives. As a result of financial circumstances it was necessary to make one redundant. The claimant was employed in 2008 and DM was employed in 2006 so on the basis of (LIFO) last-in-first-out, the claimant was selected for redundancy. It is denied that the claimant was the more senior of the two grounds men/ hare runners. On the contrary DM was employed before the claimant. No distinction was made between the two employees as regards their seniority by the respondent; both were classed as general operatives.
It is denied that the respondent engaged PS to carry out the functions of DM and that DM in turn carried out the functions of the claimant. In the first instance both DM and the claimant carried out the same functions. Secondly PS has remained a part time general operative and has not taken over the functions of DM or for that matter the claimant. Since the cessation of the claimant’s employment by reason of redundancy the hours of the part-time employees have not substantially increased.
It is further denied that the respondent took into account the malicious rumours referred to by the claimant. At no stage did the respondent give any credence to those rumours and those rumours were not taken into account in selecting the claimant for redundancy.
Respondent’s case:
The Tribunal heard evidence from the chairman of the Board of management. He explained that the respondent’s profits decreased in 2007 and further decreased in 2008. In 2009 the respondent broke even. They were the only track that employed two grounds men/ hare runners. They employed two permanent staff, two women who work-shared, eight part-time staff. The staff consisted of one permanent manager, two office staff, turnstile staff, ground staff, a kennel person, catering staff and a part time cash collector.
The respondent considered rationalisation in 2009 / 2010. The board was conscious that they had to make savings otherwise they would not be in business. They made the chef redundant. They let the paper keeper / accounts person go. The claimant was chosen for redundancy because he had least service i.e. LIFO. Also a second grounds man was surplus to requirements. The claimant was on the same pay as DM. The claimant was not more senior than DM.
In cross-examination it was put to the witness that the claimant was the main hare runner and the witness could not provide an answer. The witness was aware of the rumours that the claimant allegedly gave out dog track trial times. The witness agreed that PS was employed as a part time grounds man and did some maintenance work. When asked why the claimant was not kept on as a part time grounds man the witness explained that it was the decision for the manager not the Board. The witness agreed that there was a large expansion recently to the respondent grounds and that a new stand valued at 1.5 million was in place or planned. He explained that the purpose of the development was to build a restaurant and stand to cater for parties and anniversaries
The Tribunal heard evidence from the manager of the track. He told the claimant that he was redundant. He felt that it was a difficult situation and that it would be best they made a clean break, and the Board directed that he could pay the claimant in lieu of notice.
Regarding the rumours, he had a policy whereby he would only consider rumours if they were in writing. The claimant assured him that the rumours were not true and he accepted that.
Regarding PS, PS was working “on and off” at the track since 2002. PS covered for holidays and sick leave. PS presently works 14 to 18 hours per week “driving the hare”. At the time of redundancies PS covered holidays etc and worked circa 12 hours.
It was put to the witness that the claimant regarded himself as being the senior of the grounds men/ hare runners and he replied that “they were on the same money the same hours, to me they were both the same there was no senior man”.
In cross-examination it was put to the witness that PS’s employment hours increased dramatically after the claimant had been made redundant and he explained that it increased but not dramatically, they were still able to do the work with part time staff. They had needed to “get rid” of a full time person to save money. When asked why they did not offer the claimant the part time position he explained that PS was already there as a part time worker or casual worker. When asked why the claimant was not given the option of those hours the witness replied that he did not know. The witness accepted that the claimant did not get a contract of employment.
In clarification for the Tribunal the witness explained that there are 40 or 60 hours “running” and PS does 18 hours and DM does the hours that the claimant did.
The Tribunal heard evidence from PS who told the Tribunal that he was one of the longest serving employees. He did not take over the claimant’s full time position. He works 16 hours per week. After the claimant was made redundant DM raced the hare. He himself races the hare around 16 hours per week.
Claimant’s case:
The claimant told the Tribunal that he had spent 6 years in Tipperary and Kilkenny in the greyhound track. He got a phone call to say that there was a Board of management meeting and that he was to be made redundant and given his notice.
When he was told that he was to be made redundant he asked to work his notice because of the rumours that were circulating and it would look like he was fired (because of the alleged leaking of information). His reputation is “gone completely” and what did this damage more than anything else is that he did not work his notice. He used to cover other greyhound races but he received no offers since because it ruined his reputation. The claimant explained that he did not believe that it was a genuine redundancy, that there was part time work and he was not offered the part time work. If he had been offered part time work he would have taken the offer.
The claimant gave evidence as to his loss.
Determination:
The Tribunal determines that a redundancy situation existed. The respondent did not explore wage cuts, or cutting hours or re-allocating hours. The respondent did not act reasonably or fairly.
The claim under the Unfair Dismissals Acts, 1977 To 2007, succeeds. The Tribunal determines that compensation be the most appropriate remedy and awards the claimant the sum of €3,250.00, as being just and equitable having regard to all the circumstances.
The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)