UD469/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Keith Hogan,    -    claimant                                                                                      UD469/2013

Against

Noelle Maguire and Manus McClafferty

T/A Maguire McClafferty Solicitors   -   respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. D. Mac Carthy S C

Members:     Mr T. O'Grady

                    Mr P. Trehy

heard this claim at Dublin on 15th April 2014

Representation:

Claimant(s) : Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway

Respondent(s) : Mr Mark O’Connell B.L. instructed by Maguire McClafferty, Solicitors,

8 Ontario Terrace, Portobello Bridge, Dublin 6

The determination of the Tribunal was as follows:-

Summary of Evidence

The respondent a firm of solicitors employed the claimant on the 1 June 2011 for a specific purpose. Due to a considerable reduction in the work and financial pressures a decision to terminate the claimant’s employment was made and the employment ended on the 1 March 2013.

A partner in the firm gave evidence of recruiting the claimant in June 2011. The claimant was recruited for the purpose of carrying out a specific job on a batch of cases. At the time the witness could not determine how long the task would take but estimated it at between one to one and a half years which he discussed with the claimant. The bulk of the workload at the firm was personal injury / litigation and the claimant’s role was to prepare cases at the stage after counsel had advised on proofs. The claimant performed well in the role and was paid a bonus in 2012. The respondent witness denied that the relationship deteriorated between them following the claimant’s request for a pay increase in December 2012 and denied starving the claimant of work. By the middle of 2012 the number of new cases was dropping which led to the witness having more time available to him. He discussed the financial situation with the claimant and made him aware of a number of redundancies in September 2012 including the redundancy of the claimant’s secretary. He consulted the claimant when preparing the letters of redundancy at that time. No other alternatives or the option of short time was considered by the witness. The largest overhead was the wages bill and the option of redundancy was chosen in circumstances where the work load had reduced. Voluntary redundancy was not an option as specific roles were redundant. Following the termination of the claimant’s employment the witness handled the work which continued to decline. An ex-gratia payment of €2000.00 was made to the claimant as he did not have the service entitling him to a redundancy payment.

The claimant’s evidence was that on commencing employment with the respondent his contract did not specify the period of time the appointment was for but accepted that a discussion took place on the specific task he would be assigned. There was no discussion on how long the role would exist. The role to which the claimant was assigned involved getting files at stage six of a process involving the preparation of cases for the high court. The claimant accepted that other solicitors in the practice were assigned cases from cradle to grave. He received a bonus in July 2012 at which there was no mention of a drop in cases by the respondent. Although he was aware the number of new cases had declined he was not concerned as that would not have any impact on his work for one year or more. The number of cases for 2013 was shaping up to be busier than 2012.

The claimant sought a performance review during 2012. He had criticised the respondent partner for a decision he made in one case where he believed the correct solicitor client fee was not applied leaving a significant shortfall. He was aware of the financial tensions within the practice and was of the view that such a shortfall on client fees was adding to the problem. The claimant denied being consulted on the redundancy letters which issued to employees in September 2012. The claimant had some genuine concerns relating to the rushed manner in which cases were being prepared and brought this to the respondent’s attention. This had created some tension between the parties. The concerns he raised were later referenced at the performance review meeting which took place in December 2012 in the context of how the respondent felt he was not taking adequate time to read and prepare cases. The claimant felt he was micro managed and often humiliated by the respondent partner.

On the 15 February 2013 the claimant received a telephone call from the respondent partner at 4.40pm requesting he meet with him in his office. He was informed at that meeting that he was being let go from his employment.

Determination

The Tribunal considered the evidence adduced at the hearing and is satisfied that a redundancy situation did exist. The respondent has proven that there was substantial grounds for the dismissal.

However Section 5 (b) of the Unfair Dismissals (Amendment) Act 1993 provides

The Tribunal is of the view that the dismissal should have been handled better by the respondent. A meeting among the colleagues in the same profession should have been arranged at an early stage to discuss the financial situation and the decline in new cases. It is not enough to expect the claimant to be aware that his job was under threat.

As the “substantial ground justifying the dismissal” has been shown and the dismissal is found to be unfair only under Section 5 (b) of the amending Act the Tribunal considers it “just and equitable having regard to the circumstances” to make a reduced award.

The Tribunal awards compensation in the sum of €8,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)