EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE UD1738/2011
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr. J. Goulding
Mr. P. Trehy
heard this case in Dublin on 15 March 2013 and 1 August 2013
Representation:
Claimant:
Respondent:
A claim was lodged with the Tribunal under unfair dismissal legislation in respect of a sales director with regard to employment from April 2002 to the end of July 2011. He had initially been the respondent’s CEO but subsequently became director of sales. In mid-June 2011 the claimant was told by POB (director and company secretary) that from end July 2011 he would be made redundant. It was alleged that there had been no consultation with the claimant in
advance of this, that the news had come “out of the blue” and that there had not been compliance with the proper procedures.
It was alleged that POB had said that, as far back as December 2010, the respondent’s board of directors had decided to make the claimant redundant, that a young man would be more suitable for the claimant’s position (i.e. that it was a “young man’s game”), that the winding-up of a business associated with the claimant had reflected badly on him and that a graduate would replace him.
It was the claimant’s case that no real redundancy had existed, that the respondent had not complied with any fair selection process, that he had been surprised that there had been no consultation or forewarning, that no-one else had lost their job, that alternatives to his redundancy had not been considered and that no opportunity to appeal was afforded to him.
The respondent robustly contested the unfair dismissal claim contending that a collapse in its sales of dental equipment had led to the claimant’s redundancy. No other person in the respondent had worked in sales of equipment. It was contended that there had not been unfair selection or any other kind of unfair dismissal but, rather, that there had been an authentic redundancy.
All information on sales had been available to the claimant as the person at the head of the equipment section and he knew that sales had nosedived. In 2010 he had been put on a three-day week. He had been affected by paycuts and, arising from the recession, others had been victims of redundancy to his knowledge. Therefore, it was vigorously denied that, for the claimant, it had come “out of the blue” that his position had fallen prey to redundancy.
Regarding December 2010 it was denied that the claimant’s being made redundant had been decided so far in advance by the respondent’s directors. It was contended that POB (as the respondent’s managing director) had been holding out for a possible market pick-up to save the claimant’s post even if directors long feared for the claimant’s role becoming redundant. The claimant’s redundancy ultimately became inevitable as sales of equipment kept falling.
A fall in the respondent’s share of the market and a realisation as to why the respondent’s sales had fallen so dramatically was what had prompted the reference to a “young man’s game” in a casual conversation. It had been the claimant who had introduced the phrase when, on the occasion of a meeting involving possible customers, he had intimated that the accompaniment of a younger colleague might be beneficial. The respondent was at pains to deny that the claimant’s age was a catalyst for any potential replacing of him. He was neither replaced by a graduate nor was it said that he would be. In addition to their pre-existing duties other directors/shareholders would discharge the claimant’s duties.
Over twenty-seven thousand euro was paid to the claimant and accepted by him in that there had been an ex gratia payment in addition to statutory redundancy in the amount of just under six thousand euro. Also, the claimant was paid his entire holiday pay for 2011 and no deduction was made in respect of leave taken already.
Determination:
The Tribunal, having taken sworn testimony from both sides, is satisfied from the evidence adduced that a genuine redundancy situation arose in relation to the claimant’s position. Although there had been some redundancies in the company in recent times the claimant had no advance notice prior to 22 June 2011 that his own position was in jeopardy. The respondent company failed to consult with the claimant prior to notifying him that his position was redundant. The Tribunal is of the view that a consultation should have taken place irrespective of whether or not the claimant’s position was the only one in the selection process. The claimant was not offered the opportunity to provide input or suggest alternatives and he may have had valid input to provide given his extensive experience.
The Tribunal finds that the manner in which the respondent company implemented the genuine redundancy was procedurally flawed.
In considering the appropriate sum of compensation the Tribunal is cognisant of the genuine redundancy situation and that the claimant received the sum of €17,503.87. Therefore, the Tribunal awards the claimant the sum of €12,000.00 (twelve thousand euro) under the Unfair Dismissals Acts, 1977 to 2007, over and above any other payments received, in allowing the claim under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)