UD2336/2010

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

EMPLOYEE  - claimant                                                                                UD2336/2010

Against

EMPLOYER - respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. F.  Murphy

Members:     Mr. D.  Morrison

                     Mr M.  McGarry

heard this claim at Castlebar on 15th March 2013 and 11th July 2013

Representation:

Claimant(s) :

Respondent(s) :

The determination of the Tribunal was as follows:-

Summary of Evidence

The respondent company was described as a commercial catering company and supplier of catering equipment. The Tribunal heard evidence from company director (PN) of the business suffering a decline due to the downturn in the economy. The claimant returned from maternity leave and was unhappy when she learned of the decision to put her on a three day week. She sought redundancy and was given an opportunity to reconsider her decision however she chose to opt for redundancy. It was hoped that she would be returned to full time employment when the business picked up. The claimant’s role did not involve sales and services. Her position has since been outsourced on a two days per week basis.

A second witness for the respondent (GM) gave evidence of the claimant being a good employee and did not want to lose her. The nature of the business changed from retail to wholesale as part of a restructuring to deal with the significant reduction in sales and services. The claimant was offered three days per week however she turned that offer down as she wanted redundancy.  The witness accepted that the company had kept no records of conversations with the claimant regarding her employment.

A former employee (SK) gave evidence on behalf of the respondent. SK was employed from 2005 to 2010 by the company. A decline in trade sales led to her duties being taken on by PN. The claimant told her of the offer of three days per week and she recalled her saying she wanted redundancy. The claimant expressed concern at the time that she would not be offered redundancy and asked her to talk to PN on her behalf. The witness telephoned PN telling him that the claimant was upset and to offer her redundancy.

The witness claimed that on the 15 March 2013 the claimant telephoned her asking her to give evidence on her behalf and support her case. The claimant allegedly offered to compensate her if she gave evidence. She received a second communication from the claimant the week prior to the hearing.

The claimant commenced employment in October 2003 and her employment ended by way of redundancy on the 8 October 2010. Her role in the company was office manager with responsibility for logistics, purchasing, stock control and accounts. She returned to work following a period of maternity leave. She was aware of SK being made redundant and was worried about her position. Previously in 2009 following threats of redundancy she agreed to a pay cut.

The following day PN suggested the option of working three days per week. She was concerned as her work was divided between three other employees and she believed that work should be returned to her as she was entitled to return to the same role. She was informed by both PN and GM that if she did not accept the three days she would be made redundant. She felt intimidated and given little time to consider her options.  The claimant denied ever seeking redundancy as she needed to work full time. She denied contacting SK in March 2013 and offering her compensation if she gave evidence on her behalf. She had contacted her by text the week prior to the hearing as SK was aware that her work had been divided between other employees and not returned to her following her return to work. The claimant believes the respondent using a flawed selection criteria made her redundant.

Determination

It is accepted by all parties that the claimant was offered a three day week and she refused the offer. The Tribunal accepts the evidence of the respondent that if the company’s fortunes improved it would have been their intention to restore the claimant to a five day working week. The evidence of the two directors of the respondent company and that of another witness a former employee corroborated the submission that it was the claimant's wish or her request to be made redundant. The Tribunal accepts the evidence that there was a genuine redundancy situation accepted by the claimant and requested by her.  

In all the circumstances the claimant was not unfairly dismissed. The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)