EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD1573/2012
Ian Smillie - Claimant RP1141/2012
MN942/2012
Midland Construction and Engineering - Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE ADNTERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. G. Hanlon
Members: Mr. B. Kealy
Mr. P. Trehy
heard this appeal at Dublin on 4th February 2014
Representation:
Appellant(s) : Ms. Claire Bruton BL instructed by:
Hennessey & Perrozzi Solicitors, Burgundy House,
Forster Way, Swords, Co. Dublin
Respondent(s) : Mr. Eddie Keenan, CIF, Construction House, Canal Road, Dublin 6
The decision of the Tribunal was as follows:-
Background:
The claimant was employed as a Contracts Manager for the respondent company which was involved in the construction industry. He was initially interviewed for the position by the then General Manager (DD) and commenced employment in 2007. (DD was not present on the day of the hearing to give any sworn evidence) The claimant was a great worker with no disciplinary issues. In 2010 the economy took a downturn which affected the respondent business. It was decided that the company needed rationalisation to cut costs and make it more competitive. A 25% cut in salary was introduced in 2011 and new contracts were issued to all staff. Not all staff signed and returned their new contracts, including the claimant.
In early 2012 the claimant’s father passed away and he requested, and was granted, leave to travel to South Africa. His trip was extended due to personal circumstances for a few weeks. He returned to work on the 10th April 2012.
The projects the claimant was working on were near completion and as he had requested more time off to return to South Africa to tie up his late fathers’ business affairs, he was asked to go to Cork to assist with a project. He again returned to South Africa returning in July 2012.
During this time the company was tendering for more work but to no avail. At the time the respondent had four Contracts Managers, including the claimant. It was decided, having assessed the business, the claimant would be made redundant as the projects he had been working on were nearing completion and there were no new projects for him to manage. DD contacted the claimant while he was abroad on leave and informed him that he was to be made redundant.
Respondent’s Case:
The Managing Director (MD) gave evidence. He told the Tribunal that he had no alternative position to offer the claimant and therefore had to make him redundant. Three other Contract Managers had remained employed with the respondent after the claimant was made redundant but only until their projects were completed. He now carried out this work himself.
DD had dealt with the claimant directly regarding his redundancy package but had been present on one occasion when a conversation took place regarding the redundancy. DD had since left the employment of the respondent in October 2012. He agreed that he had met with the claimant on a later occasion but had not offered him a brown envelope.
On cross-examination MD stated that it was not common practice for Contract Managers to change onsite unless someone was ill. When put to him he agreed that the claimant had no previous warnings, was a great worker and would work with him again.
Claimant’s Case:
The claimant gave evidence. He stated that he had not agreed to an introduction of a new contract of employment in July 2011. He had tried to discuss the matter with DD on numerous occasions but never did.
He told the Tribunal that other Contract Managers with less service remained employed after he was let go. He explained that he had worked on another Contract Manager’s project ironing out some difficulties and had been asked to take over another project when a different Contracts Manager walked off the project but on principle it was agreed that Contract Managers did not change between projects.
He was not aware of any matrix used in order to decide which employee would be made redundant. He had no prior knowledge that he was to be made redundant. He told the Tribunal that he would have taken pay cut rather be let go.
The claimant gave evidence of loss.
Determination:
The Tribunal has carefully considered the evidence and submissions adduced by both parties in this matter.
Due to the economic climate there was a downturn in the construction industry and the respondent found it had to rationalise its business by making some of its employees redundant. The claimant was selected for redundancy but the manner in which he was selected is deemed unfair by the Tribunal.
The Tribunal awards the claimant the sum of €26,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The respondent conceded the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and therefore the Tribunal awards the sum of €2,885.60, this being two weeks gross wages.
The claim under the Redundancy Payments Acts, 1967 to 2007 was dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)