UD358/2012

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr N. Russell

Members:     Mr J. Hennessy

                     Mr O. Wills

heard this claim at Clonmel on 26 July 2013 

Representation:

Claimant: 

Respondent:

The determination of the Tribunal was as follows:

The claimant worked as a general operative in the respondent’s Tipperary warehouse (the depot) from August 2010. In practice the claimant’s duties involved her operating as a fork lift truck driver. The depot had been previously operated by a different company which became insolvent. The claimant, who had been an employee of the previous operator for some five years, was recruited by the respondent along with many other former co-workers when the respondent began operations from the depot in August 2010.

The respondent operates a warehousing and storage business and at the time of opening the depot had six such centres. In January 2011 after the busy Christmas period the respondent re-evaluated its operation of the depot and, in May 2011, following the loss of a soft drinks contract three employees positions of fork lift truck drivers were made redundant. The claimant was one of two general operatives whose principal duties involved fork lift truck driving remaining in the depot.

In September 2011 the respondent became aware that due to the loss of a silage wrap contract and a reorganisation on the part of its major client at the depot to supply direct from the UK a decision was made that the depot was not viable and its operations would have to be wound down. The depot eventually closed in January 2012. The respondent decided that from October 2011 there was a requirement for one fork lift truck driver only.

The respondent’s position was that the depot supervisor completed the respondent’s pro-forma selection matrix for the claimant and the other remaining fork lift truck driver (TD). The matrices considered length of service, absenteeism, disciplinary and letters as well as a sixteen category skill set. The candidates’ results were identical except that the claimant did not have the skill of driving a bendi fork truck, never having been required to drive this particular equipment.

The claimant’s position was that when she was told on 6 October that her position was being made redundant the operations director told her that she had been selected for redundancy over two other named employees as close relatives of those named employees had already been let go and the director did not want to let go two members of any one family.

TD was retained for the remaining time the depot was open and the claimant was selected for redundancy, along with two other general operatives, with her employment ending on 6 October 2011.

Determination:

Whilst it is clear that a redundancy situation existed in the depot in October 2011 the Tribunal is not satisfied that the selection of the claimant as a candidate for redundancy was either objective or reasonable. The Tribunal accepts the claimant’s evidence that on 6 October 2011 the director told her that he did not want to let two members of any one family go. There was also considerable debate about the continued operation of the bendi truck in the depot after October 2011 and the Tribunal is not satisfied about the objective nature of the selection criteria in circumstances where the bendi truck’s future operation was in such doubt. The Tribunal notes that the pro-forma selection matrix skill-set categories encompass many of the skills required for duties other than fork lift truck driving and is not satisfied why the claimant could not have been considered for positions other than fork lift truck driving and for which she clearly had the relevant skills. For all these reasons the Tribunal is not satisfied that the selection of the claimant for redundancy was fair. Accordingly, it follows that the dismissal was unfair and the Tribunal awards €5,000-00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)