UD106/2012, RP75/2012, MN55/2012, WT26/2012

EMPLOYMENT APPEALS TRIBUNAL

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 S. McNally

Members:     Mr J. Hennessy

                    Mr O. Wills

heard these claims in Cork on 17 July and 17 October 2013

Representation:

_______________

Claimant:

             Ms Lucy Walsh BL instructed by P.J. O’ Driscoll & Sons, Solicitors,

73 South Mall, Cork

Respondent:

             Ms. Catherine Day, Peninsula Business Services (Ireland) Limited,

Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3

The determination of the Tribunal was as follows:-

Claims were received under unfair dismissal, redundancy, minimum notice and working time (holidays) legislation. At the outset the claims under both theRedundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 were withdrawn.

Claimant’s Evidence;

The claimant was appointed as office manager of the respondent’s Irish operation from 5^th of January 2009. Whilst initially employed by a company in the group which was registered in the UK the respondent company was incorporated shortly thereafter in April 2009 and from that point the claimant was an employee of the respondent. Her contract of employment made it clear that her duties could encompass all the companies in the group ( GEA Westfaliasurge UK Limited, GEA Farm Technologies UK Limited, GEA Westfaliasurge Limited). The group provides equipment and servicing in the field of milk production.

The claimant was responsible for the running of the Irish Business. She had connections and managerial experience in the dairy industry given her past employment history and was hired for these reasons even though she had no technical knowledge of the products supplied and serviced by the respondent. Her initial duties included the setting up of an Irish office/presence in Ireland, which was initially run from her home. She then project managed the setting up of the office and warehouse and initially she ran both herself. In order to build the Irish business she sought support staff for the warehouse and office in 2010. She interviewed the staff and then reported to the UK. The Irish employees reported to her.  

Initially the claimant reported to a director from the UK operations who was nominated as Irish Director, JPD. This director left in March 2010 and was not replaced at the time. Prior to his departure, JPD appointed the claimant as branch manager. On the departure of JPD, the claimant reported direct to the UK to PG and DJ. The claimant expressed the wish that she would be considered for the role of Irish Director, if one were to be appointed.

In November 2010 an Irish Director was appointed, OM was appointed from the UK. During 2010 there were concerns by both the claimant and the directors of the group that the Irish Business was not operating to a satisfactory level. It was accepted by all, that lack of technical support to hand at local level was a contributory factor. The claimant had believed that the appointment of OM would not effect her role and who she was reporting to. She had welcomed the arrival of OM to the Irish operation on a full time basis as he had the required technical knowledge that was required. It came to her attention on her annual appraisal in early 2011 that her appraisal was to be carried out by OM.

The claimant raised an informal grievance regarding her job title during 2010 and 2011 and it was ultimately accepted by the DJ on behalf of the respondent in April 2011 that she had been appointed as branch manager by the previous Irish director, JPD. She also requested that her job role be defined and sought clarification of who she was to report to as her line manager in 2011.The claimant states that this was not done by the respondent.

At a meeting on the 4^th of November 2011 the claimant was informed by DJ and PG that the respondent company were restructuring and her position was at risk for redundancy. The company asked for her proposals and confirmed this by letter of the 7^th of November 2011 a further consultation meeting was scheduled for the 14^th of November 2011. Present at this meeting was JA and the claimant. The final meeting was held on the 30^th of November 2011. In the intervening period further alternatives were suggested by the claimant to the respondent. At the final meeting the decision to make the claimants role was confirmed to the claimant with immediate effect. The claimant stated in her evidence that the alternatives proposed by her were not considered and she was not offered the sales position and training for the position that they intended to fill.

The claimant in her evidence claimed that she had worked for six days on a Sunday which were not paid for and she had not taken time off in lieu of payment. The respondent did not maintain its opposition to the claim for outstanding holidays in light of the explanation from the claimant for her claim for holidays.

The claimant gave detailed breakdown of her losses in both oral and written form.

Respondents Evidence

DJ gave evidence on behalf of the respondent company, who was the financial director of both the UK and Ireland for the Group. JPD was the Director in charge of sales and marketing for Ireland and the claimant reported to him until he departed in March 2010. It was decided that the claimant would report to directly to PG and him directly rather than replace JPD at the time. Everything was going fine with regular monthly meetings but as time went on the business in Ireland was struggling.

In November 2010 they sent OM to work with the claimant and report back his findings. It was noted that there were technical issues which prevented performance in sales. It was decided in December 2010 a new Irish Director be appointed, OM, was seconded to Ireland on a full time basis and to work on site. The Irish business was suffering from a reduction in turnover and accrued losses in 2011, even though OM had managed to increase turnover. The Irish business was in debt to the group’s bankers so the increase in turnover in 2011 could not sustain the overheads of the business and the workforce.   The directors of the group received a mandate to develop the Irish Market regardless of the losses. They recognised the need to increase the sales staff to get coverage in the market. They looked at the costs of business in Ireland and decided two synergies could be implemented, both would result in the Branch Managers role being put at risk. For the additional cost of €4,000.00 they could employ a low level administration person and a sales person in place of the branch manager.

The consultation process was then commenced by way of a meeting with the claimant on the 4^th of November 2009. The claimant had been aware of the financial position of the Irish business. She was informed that her position was at risk, it had been discussed with their German superiors and a two way consultation process was commencing from this meeting. The proposals put forward by the claimant such as reduced days or be a self-employed contractor were considered but there would be an additional cost of €15,000 borne by the respondent to hire a sales person.

The second meeting was held by JA with the claimant. In her evidence JA stated informed the tribunal that the proposals of the claimant since the last meeting were considered. The claimant suggested alternative positions be made redundant and that she take on those roles. The decision had already been made to keep those roles in advance of the consultation. JA had personally hoped the claimant would take on the sales position that had to be filled.

The final meeting was conducted on the 30^th of November 2011. Present were DJ, OM and the claimant. . The state of the Irish business and the claimants views on the business, her previous grievance raised and the alternatives to redundancy as proposed by the claimant. The budget for a low level administration person and sale person were quoted by DJ. All proposals put forward by the claimant were decided against and the decision to make the claimant redundant with immediate effect was made after a short recess on the same day. The claimant was given the opportunity to appeal but did not avail of this.

Determination:

Allowing the claim under the Organisation of Working Time Act, 1997, the Tribunal awards the claimant the sum of €1,003.85 (this amount being equivalent to 1.2 weeks’ gross pay at €836.54 per week) in respect of six days’ outstanding pay under the said legislation.

The Tribunal accepts that the respondent was in an economic decline which needed some sort of restructuring and that there was a justified anticipation of redundancy but the Tribunal finds that the claimant was unfairly selected. While a consultation process was set up, the Tribunal was satisfied from the evidence given, that the decision to make the position of branch manager redundant had been decided prior to the commencement of the consultation process with the claimant. All options put forward by the claimant, the various roles that she could perform in the respondent company, were not adequately considered during the consultation process and as a consequence, the claimant had been unfairly selected.   In particular, the respondent’s decision – making was fast at the last meeting and the decision to make the claimant redundant was both immediate in its communication and effect.

Allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal deems it just and equitable in all the circumstances of this case to award the claimant compensation in the amount of €45,000.00 (forty-five thousand euro) under the said legislation in addition to all payments already received by the claimant in respect of her selection for redundancy.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)