EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1169/2011
-claimant
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr. L. Tobin
Mr. J. Jordan
heard this claim at Wicklow on 4th January 2013
and 5th June 2013
Representation:
Claimant:
& Co, Solicitors, 3 Church Buildings, Main Street, Arklow, Co Wicklow
Respondent:
Background:
The claimant was employed as a development officer with the respondent. The respondent is a national sporting organisation.
The claimant’s case is that he worked as a regional development officer in Wicklow, Wexford and Carlow and over the years he developed many programmes. He also trained in new members of staff. On 24th November 2010 he was called into a meeting and handed a letter to say that he was being let go on 31st December 2010. Other development officers within the same area who had not got the same service, qualifications and level of experience as he had been kept in employment. Twenty days after his redundancy the respondent advertised a development officer job. The claimant applied for this job and for other positions with the respondent but was unsuccessful.
Respondent’s case:
The respondent contends that the claimant was fairly dismissed by reason of redundancy within the meaning of section 6(4) (c) of the Unfair Dismissals Acts, 1977 To 2007 and the claimant has no claim against the respondent under the Act.
The Tribunal heard evidence from the HR / operations director. He had responsibility for redundancy decisions. He explained that the claimant was initially employed as a regional development officer (DVO) in Wicklow Wexford and Carlow. The claimant organised summer soccer schools, futsal and women’s football. The primary focus of the officers was football development/football clinics and emerging talent programmes.
The respondent initially had 12 DVO’s circa 2002. From 2005 / 2006 they placed the DVO’S regionally/ the DVO’s grew from 12 to 58 and had new designations. They also had specialised DVOs. The cost of DVOs was funded 100% by the respondent organisation. However circa 2005 some of the DVOs were co-funded by local government organisations. The claimant had been co-funded before 2005.
The organisation relies heavily on funding and the funding decreased. Also gate receipts decreased. So in 2010 the respondent decided to make a number of positions redundant. A total of 13 people were made redundant out of 170 employees and 8 of these were DVOs. There were 58 to 60 DVOs in the organisation. Of those 8 DVO positions they decided to restructure and make two new positions, therefore a net of 6 positions were redundant. Some counties had two DVOs and they assessed each county and decided to reduce the DVOs in particular counties to one DVO. In Wicklow there were two and they reduced to one. The claimant was one of the Wicklow DVOs and a Mr. R was the other. The claimant’s responsibility before the arrival of Mr. R was as the DVO for Wicklow. From 2008 the claimant worked in Wicklow solely but he did do some coaching courses in Carlow and Wexford. The claimant and Mr. R operated in separate areas in Wicklow.
The witness explained that they met the claimant and Mr. R on 24th November 2010. They told them that they were reducing the DVO positions from two to one. Both were told that there would be an interview for the sole DVO position.
A letter from the respondent to the claimant dated 24th November 2010 was opened to the Tribunal:
“I refer to our discussion in relation to your role as Development Officer-Wicklow with the (name of respondent). It is with regret that I informed you that the number of Development Officer Positions in Wicklow will reduce from two to one position therefore making one position redundant.
The decision who achieves the position will be determined by interview to be held on 6th December 2010. However, I would like to confirm that if you are unsuccessful, your position will be made redundant with effect 31st December 2010.
I would like to thank you for your service on behalf of the Association and wish you every success in your future career.”
The letter was from MM the technical manager.
Both the claimant and Mr. R were interviewed and Mr. R was successful. The claimant was told that he was being made redundant in January 2011.
The claimant continued to be engaged by the respondent as a kit man on a contract basis and not as an employee.
When asked if it was an unfair dismissal the witness replied, “No it was done in the fairest way possible, there were two people, it was felt that the fairest way was to interview the two people to determine who gets the role”, “both candidates met qualifications, both candidates had experience”.
The Tribunal heard evidence from MM who joined the respondent as the grassroots manager. He gave evidence as to the redundancy decision and the positions that subsequently became available.
Claimant’s case:
The claimant gave evidence to the Tribunal. He commenced employment with the respondent in 2002. He had the UEFA “B” certificate. At the time there were only 30 or 40 of those in the country and now there could be 500. In 2002 there were only 12 regional DVOs. He was present from the beginning of the Technical Development Plan. At the time there was the Technical Director and the 12 DVOs. The Technical Director at the time told him that his area was from Bray to New Ross. He was to contact clubs and to help clubs out. He coached in summer camps and operated in Wexford, Wicklow and Carlow. More priority was given to Wexford than to Wicklow “because of the size”; there were 40 clubs in Wexford and 20 clubs in Wicklow and “Carlow was a smaller area”. He was employed for 40 hours a week but worked 60 hours a week.
The witness was asked if he was ever given instruction that he was to be a Regional DVO and that he was now to work in Wicklow, he replied “No, never”, “I worked in the three counties afterward”.
The witness was asked to clarify who was doing the work that he had done in Wexford and he replied, “Mr.D”. The witness was asked to clarify who was doing the work that he had done in Carlow and he replied, “Mr.C”. The witness also clarified that he was involved in the “Social Inclusion” work.
He was on annual leave when he got a phone call in or around 24th October 2010. He was asked to go to a meeting. He had not heard anything about rationalisation. He had not received any documents / policies regarding redundancy. He went to the meeting and there was a tense atmosphere. MM took him and Mr. R to a meeting room and they were given a letter each, (Letter of 24th November 2010 as at above). He read the letter and he was very surprised.
Regarding the interview they were told to do a ten-minute power point presentation on the future of football in Wicklow. One of the interview panel was a Ms M of the VEC and he had worked with Ms M before as had Mr. R. He was not happy with the situation.
MM phoned him to say he was unsuccessful with the interview. He asked her if he could get feedback and she told him that he scored highly on football and on another topic but that the topic of Social Inclusion or his experience on that had let him down. He was very surprised at the result because of his experience and his contacts and the work he had carried out over a period of time, also, “My time in the job”. He also lived in the area where the position was and the person who got the position did not live in the area. He had not been asked about his length of service.
He did not think that for him it was a redundancy situation in Wicklow. He was not asked to take a pay cut.
The claimant applied for other roles with the respondent that were advertised over the next while and was unsuccessful. He was interviewed in January for a role and was unsuccessful. He applied for another role and did an interview in March but was unsuccessful. He applied for a Waterford development role and was interviewed in June but was not offered that position.
The claimant gave evidence as to his loss.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that the respondent was entitled to reorganise its business in order to rationalise and/or reduce its costs. The Tribunal accepts that this step by the respondent resulted in a need to effect redundancies. The Tribunal further accepts that it made sense to reduce the number of development officers at locations where there was more than one development officer. The Wicklow location at which the claimant worked had two development officers and, therefore, the Tribunal accepts that the respondent may have had a need to make one of these employees redundant but not the two of them.
The respondent made both employees redundant albeit that one redundancy did not proceed as the other employee was successful in being awarded the reconstituted position at the Wicklow location. The Tribunal finds that this reconstituted position was a merger of the claimant’s job and the job of his colleague, AR.
Had the respondent decided to make only one of the two employees in Wicklow redundant the respondent would be required, in accordance with fair procedures, to put in place selection criteria and ideally should have agreed these with the claimant. The generally acceptable method of selection is LIFO (last in, first out) or a scoring matrix. If the respondent had chosen to make one of the two employees at the Wicklow location redundant with selection effected on the basis of LIFO then clearly the claimant would have been retained over the other employee at the Wicklow location and had a scoring matrix been used the claimant would have scored higher than the other employee on the basis of service, qualifications and experience other than in the area of the social inclusion programme. The Tribunal considers that it must have regard to this.
The Tribunal finds that fair procedures were not afforded to the claimant in effecting his redundancy for the following reasons:
§ Possible alternatives to redundancy were not considered or discussed.
§ The claimant was not offered an appeal of the decision to make him redundant.
Taking into account the claimant’s length of service and the fact that the claimant acted as Regional Development Officer for Wexford until October 2007 and Carlow until August 2008 and continued to do some work in these two locations until his redundancy and on a contract basis for a short while thereafter the Tribunal is of the opinion that the respondent should at least have considered possible alternatives to redundancy in these two locations and in Westmeath where a similar position to the claimant’s arose in February 2011 shortly after the claimant had been made redundant and which was not offered to the claimant.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €27,500.00, over and above the redundancy lump sum.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)