EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE -appellant UD2091/2011
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr G. Andrews
Mr J. Flavin
heard this appeal at Limerick on 18th July 2013
Representation:
_______________
Appellant:
Respondent: In Person
This case came before the Tribunal by way of an employee appeal of the Rights Commissioner Decision ref: UD92507/10/MR under the Unfair Dismissals Acts, 1977 to 2007. The appellant is claiming that he was unfairly selected for redundancy.
Appellant’s Case
The respondent is a security company. The area the appellant was employed in ‘value added service’ (VAS) is composed of two steams; frontline maintenance and cash-in-transit. In 2002 the appellant was employed in a frontline maintenance position. This involved maintaining ATM machines and fixing any problems that did not need the expertise of an engineer. The appellant provided holiday cover for cash-in-transit which involved putting the cash into the ATM machines. A cash-in-transit staff member covered the appellant when he was on leave.
In 2008 the respondent decided to make all the cash-in-transit staff redundant in the region. A number of these staff members had longer service than the appellant but as he was in maintenance he was differentiated for the purpose of redundancy. The staff members with longer service were not transferred into the appellant’s position as it was not a cash-in-transit position.
Towards the end of the appellant’s employment he was working one week on, one week off. The appellant and the cash-in-transit staff member alternated week on week off, covering both the frontline maintenance and the cash-in-transit roles on their given week.
The appellant was aware that the respondent was making additional redundancies but as he had long service in maintenance in his region he did not believe his position was at risk. He was in the only full time maintenance position so assumed as per the announcement that his full-time position would remain, ‘Our review of the required structure going forward dictates that we will require 1 full time and 4 part time positions.’ The appellant discovered that the policy of LIFO was being applied to the pool of staff in the region (CIT and FLM) and not by area of work. In 2010 the appellant was selected for redundancy as he had the least service. A member of staff with longer service and appropriate experience was put into the appellant’s position; he previously covered the appellant’s leave and alternated the now, week-on week-off, joint full-time role.
The appellant did see the respondent’s document of the 27th of January 2010 stating that ‘the company has no option but to seek to implement a restructuring programme amongst the CIT and FLM employees based (in the region).’ The appellant had representation from his union at all stages throughout the redundancy process. No viable alternatives or appeal was offered to the appellant.
The appellant gave evidence of his loss and his attempts to mitigate his loss.
Respondent’s Case
GP, the person who replaced the appellant gave evidence of his capabilities to undertake both the role of cash-in-transit and frontline maintenance. GP also outlined the system used to cover leave and later the dual CIT/FLM role on a week-on week-off basis. GP commenced employment with the respondent through a transfer of undertakings in 1989. GP also held a supervisory role.
The HR Manager for the respondent (PW) gave evidence. The respondent’s cash facilities had been regionalised until a purpose built cash holding facility was built in Dublin. Consequently the business was completely re-organised resulting in 9 roles being made redundant. The respondent initially sought voluntary redundancy but finally had to implement a compulsory redundancy scheme.
By letter of the 27th of January 2010 the respondent’s position was set out. The announcement outlined that, ‘‘the company has no option but to seek to implement a restructuring programme amongst the CIT and FLM employees based (in the region.) At present there are 11 full time and 3 part time positions in (the region). Our review of the required structure going forward dictates that we will require 1 full time and 4 part time positions.’ That announcement also detailed two vacant positions that could be applied for.
The respondent went to the LRC to discuss the terms of the redundancy in conjunction with the Union and was subsequently bound by that agreement. On the 1st of February 2010 a notice was given to all staff stating, ‘further to the letter of the 27th of January 2010 I would like to confirm the terms of redundancy in relation to the ongoing restructuring amongst the VAS department.’
The respondent is satisfied that the roles of cash-in-transit and frontline maintenance require the same skills and are interchangeable; a number of staff did both roles simultaneously including the appellant. The skill set was the same for both roles as both roles involved accessing the same equipment.
Where there are compulsory redundancies made LIFO is always applied within the respondent. PW does not recall the exact circumstances of the redundancies made in 2008 but disputes that any staff member with lesser service was retained over longer serving staff members. PW believes that anyone with longer service than the appellant made redundant in 2008 must have volunteered for redundancy. A voluntary redundancy scheme is always offered before compulsory redundancies are made. The Union was involved throughout the redundancy process both in 2008 and 2010. The appellant did not object to his redundancy.
Determination
Having carefully considered the evidence the Tribunal are satisfied that a genuine redundancy situation did exist and that the appellant was fairly selected for redundancy. The Tribunal is satisfied that the appellant was part of the ‘VAS’ department and not in a role without comparators. The appellant had Union representation throughout the process and he did not object to being selected for redundancy to the respondent. The respondent engaged in discussions with the Union on an on-going basis. The appellant’s selection was based on LIFO as is the respondent’s practice.
The Tribunal find that the appeal of the Rights Commissioner Decision ref: UD92507/10/MR fails and therefore upholds Rights Commissioner’s decision made under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)