EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Ken McFarland, UD2323/2011
PW519/2011
against the recommendations of the Rights Commissioner in the case of:
Stanley Security Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. R. Murphy
Ms. E. Brezina
heard this case in Dublin on 2 May 2014
Representation:
_______________
Appellant(s):
Mr. Joe Bolger, E.S.A. Consultants, The Novum Building,
Clonshaugh Industrial Estate, Clonshaugh, Dublin 17
Respondent(s):
Mr. John Barry on behalf of Ms Sheenagh McCullagh, Human Resources Manager,
Stanley Security Ireland, A1-A3 Calmount Park, Calmount Road, Ballymount, Dublin 12
This case came to the Tribunal as an employee appeal against Rights Commissioner Recommendation r-106140-ud-11/TB under the Unfair Dismissals Acts, 1977 to 2007, and against Rights Commissioner Decision r-106141-pw-11/TB under the Payment of Wages Act,1991.
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced. The claimant makes the case that he was unfairly dismissed when he accepted his redundancy in and around September 2010.
The claimant had been in the employment of the respondent since 2006. Primarily, the claimant was employed to manage and maintain the security account held with A.I.B..
There can be no doubt that during the years of economic boom the claimant had a full-time job in managing and looking after the said A.I.B. account. Needless to say, as things slowed down and fewer projects were coming on stream within the A.I.B. Group, the claimant’s position had to adapt and be flexible in taking up other duties and functions.
In and around June of 2010, the claimant was informed that he was going to have to move from a fixed pay scheme to an incentivised pay scheme. The claimant has always maintained that the proposed pay structure would inevitably lead to the reduction in his guaranteed salary from €62,000.00 to €42,000.00 with an effective cap on commission to €8,000.00 from one of about €12,000.00.
Not surprisingly, the claimant was extremely unhappy about these proposed changes which came in the aftermath of a previous 8.5% reduction in basic salary in the year preceding 2010. There ensued a period of protracted dialogue. It is fair to say that the respondent is correct in its contention that there was no negotiation per se. The claimant never put an alternative salary structure and/or job spec to the respondent company.
In essence the dialogue opened up between the parties really amounted to the claimant stating that he could not continue providing the appropriate services to A.I.B., continue to manage the engineers and additionally drum up €1.2m worth of sales from new clients per annum.
Between 23 July and 10 August a number of letters, observations and meetings were prepared and attended by the claimant and PA on behalf of the respondent company.
The conversation was left open on 10 August when the claimant wrote to the respondent stating he was not prepared to take the proposed cut in salary and he further went on to state that he wanted a colleague with him at the next meeting.
Then, on 13 August 2010, the company notified the workforce of a need for redundancies. The respondent argued that this could not have come as a surprise to the plaintiff who knew or ought to have known their position with A.I.B. was at risk as that bank was not at liberty to initiate projects as it had heretofore done.
It is worth noting that the figures adduced by the respondent seemed to suggest a catastrophic fall-off in business to the tune of circa 90%. However, as tested in evidence, it was clear that the figures were not that drastic and that the financial institutions were still turning a healthy profit albeit reduced. The evidence of the claimant was persuasive as indeed was the company’s own trading accounts.
There can be no doubt that staff numbers were being reduced at the time and the workforce was in the process of being reduced. This had happened in the past and the 13 August notification put redundancies back on the agenda again.
At no time between 13 August and 30 August was the claimant advised that the notification regarding the proposed pay structure terminated and, in fact, what happened was that on 30 August the claimant was called in and notified that his position was now being made redundant. The claimant was given one day and, on request, two days to consider his position.
The Tribunal absolutely accepts that the claimant was shocked at the fact that he had been selected for redundancy and it recognises that, for the claimant, there was a definite link between his refusal to take a significant diminution in salary and the sudden decision to make him redundant. The respondent did nothing to ameliorate this decision and, in fact, applied immediate and unfair pressure on the claimant to make a decision which could only be made, therefore, with haste and in anger.
The Tribunal has long recognised the need in employment situations for a “cooling-off “period where rash decisions have clearly been made. There is no doubt that the claimant made a wrong decision in not looking to see what alternative position might be available or, at least, write to find out what salary might be offered in respect of the proposed amalgam-job being opened up to the redundant account managers.
The Tribunal feels that the company acted in a pressing and unfair way and that the company knew as of 6 September that the claimant was aggrieved even as he took his redundancy cheque.
In the circumstances the Tribunal finds the claimant was unfairly dismissed. Taking into account that the decision was made by the claimant, the Tribunal awards the sum of €32,500.00 as compensation (which figure is over and above any payments already made to the claimant in relation to the termination of his employment) in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007.
The appeal against Rights Commissioner Decision r-106141-pw-11/TB under the Payment of Wages Act, 1991, falls for want of prosecution.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)