EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE claimant UD576/2012
RP418/2012
MN434/2012
WT418/2012
against
EMPLOYER respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates BL
Members: Mr D. Peakin
Mr S. O’Donnell
heard this appeal at Dublin on 10th June 2013
Representation
Claimant: Mr Michael Kinsley BL instructed by Moya de Paor of
Northside Community Law Centre, Northside Civic Centre,
Coolock, Dublin 17
Respondent: In person
The determination of the Tribunal is as follows:
The claim under the Organisation of working Time Act 1997 was withdrawn.
Respondent’s Case
The managing director of the respondent company gave evidence that the company is a provider of security services. Initially, the claimant was employed by the respondent from May, 1999 until October, 2005 following a transfer of undertaking which took place in 1999. In September, 2005, the claimant failed to report for work and the respondent furnished two letters dated 26th October, 2005 and 14th November, 2005 seeking an explanation as to the reason that the claimant had not returned to work. The managing director gave evidence that no Medical Certificates were received by the company from the claimant. In April, 2007, the claimant contacted the company requesting that he be re-employed. After some deliberation the respondent re-employed the claimant.
The managing director said that in 2007, the respondent had approximately 70 employees but staff numbers began to drop in 2008 as a result of the economic downturn and by 2011, there were 33 employees including the claimant. At present, the respondent has 20 employees and the managing director is running the business on his own, having made the book keeper and the operations manager redundant.
The managing director gave evidence that work is site specific and that each employee is assigned to a particular site and does not work on other sites. In March, 2011 the respondent lost a significant contract on which the claimant had been deployed but the respondent re-deployed the claimant on other sites.
In early March 2011, the claimant was working on the gate at Dublin Ferry Terminal and a serious breach of security procedures occurred. The managing director gave evidence that he was shown a video tape by the managing director of the site which revealed that the claimant had failed to check the seal numbers on a container which was the main function of the claimant’s position on the site. The managing director of the site requested that the respondent remove the claimant from work on the site.
The claimant was re-deployed to another site. Another unfortunate incident occurred involving the claimant. An alarm was activated at the end of the night shift. The claimant who had already changed out of his uniform needed to summon a colleague from a nearby building to turn off the alarm. This happened just as the client’s head of security was arriving at work for a meeting and the client requested that the claimant be removed from the site as a result of the incident. The managing director accepted that this was an unlucky incident for the claimant but was satisfied that the site supervisor had shown the claimant how to deactivate the alarm and warned him that it could go off during heavy rain. The managing director said that it was a breach of procedure for the claimant to have changed out of his uniform prior to the end of his shift.
The managing director gave evidence that as a result of the economic downturn, there were no further alternative sites upon which the claimant could be re-deployed. The managing director said that he made it clear to the claimant that in his opinion, whilst the incident did not warrant dismissal, the respondent had no option but to re-deploy an employee with whom a client was dissatisfied as a result of a breach of security procedures. He said that he simply did not have any other site upon which he could re-deploy the claimant given the loss of contracts which the respondent had sustained since the claimant was first employed. As there was no other employment available for the claimant, the managing director offered redundancy which the claimant accepted.
Claimant’s Case
The claimant gave evidence that he commenced employment with the respondent company in 1999. He could not remember whether or not he was given a contract of employment. The claimant said that he stopped working in 2005 because he was sick. The claimant denied receiving the managing director’s letters enquiring as to whether or not he was returning to work. The claimant said that he had forwarded six certificates to the respondent. The claimant said that he contacted the operations manager of the respondent when he was feeling better and was re-deployed on near enough the same terms.
The claimant said that the breach of procedures which had occurred on the Dublin Ferry Terminal site was made by a colleague and not by himself. The claimant complained that the site manager had told him of the existence of CCTV footage but had not produced it. In relation to the second incident, the claimant said that the alarm activated just when he had come off duty. He denied being out of uniform. The claimant said that he had not been shown how to turn off the alarm.
The claimant said that he accepted redundancy only on condition that if suitable work became available he would be re-employed.
Determination
The Tribunal has carefully considered the evidence adduced by both sides. There were significant differences in the accounts of the incidents which led to the claimant’s redundancy. The Tribunal accepts the respondent’s evidence that following a breach of procedure on the first site, the respondent re-deployed the claimant to another site and would have re-deployed to a further site had work been available. The Tribunal accepts the respondent’s evidence of loss of a significant contract and a gradual downturn in business resulting in an inability on the respondent’s part to re-deploy the claimant following a second breach of security procedures. The Tribunal is satisfied that the respondent would have re-deployed the claimant had work been available on an alternative site and that the respondent considered this option before making the claimant redundant.
Accordingly, the termination of the claimant’s employment was as a result of redundancy and was not an unfair dismissal. The Claim under the Unfair Dismissals Acts 1977 to 2007 fails.
On the basis of the managing director’s evidence the Tribunal accepts that there was a break in the claimant’s service from September, 2005 to April, 2007 when the claimant failed to respond to the two letters from the respondent enquiring why the claimant had not returned to work. In the circumstances, the claimant is entitled to a redundancy payment based on his service from April, 2007. The claimant has been paid a redundancy lump sum on this basis and therefore, the Tribunal makes no award under the Redundancy Payments Acts, 1967 to 2007. The claimant was paid one week’s notice but has a statutory entitlement to two weeks’ payment. The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 succeeds and the claimant is awarded €375.00 comprising one week’s pay.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)