EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
John Melia UD1569/2012
against the recommendation of the Rights Commissioner in the case of:
M & J Gleeson & Company
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr J. Flavin
heard this appeal at Thurles on 24th June 2014 and 8th October 2014
Representation:
Appellant: Mr Sorcha Houlihan, D A Houlihan & Son, Solicitors, John's Place, Birr, Co Offaly
Respondent: Mr Paul McDonnell, Gartlan Furey, Solicitors, 20 Fitzwilliam Square, Dublin 2
This case came to the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-121475-ud-12/GC.
Respondent’s case:
The respondent is a haulage company and the appellant was employed as a lorry driver from 13th June 2005 until he was dismissed by way of redundancy on 23rd December 2011. The appellant had been reduced to a 3 day working week for some time before being made redundant.
One of the respondent’s largest clients had indicated that they were no longer going to engage the services of the respondent and in anticipation of this the respondent decided to make a number of drivers redundant. A list of those to be made redundant was drawn up based on the principle of last in, first out (LIFO). The appellant was not on this list. However he was required to change from driving an articulated lorry to a rigid truck. The same terms and conditions of employment were to apply other than he could no longer bring the truck home with him. After driving the rigid truck for one week the appellant approached the manager and requested to be made redundant as the new arrangement did not suit him. Therefore the appellant was made redundant and the last person on the LIFO list was kept on instead.
It later transpired that the respondent did not loose the contract as anticipated but that it continued for another 8 months approximately. However the respondent decided to contract this work out to another company and that company then employed some of the respondent’s former drivers. However the appellant was not one of those taken on by the other company and it was the respondent’s believe that the appellant did not want a job there as he had already secured employment elsewhere.
Appellant’s case:
The appellant denied that he ever requested to be made redundant. He did change from driving an articulated lorry to a rigid truck for a week prior to being made redundant but did not tell his manager he did not want to continue with that arrangement. The appellant did not know at the time of his redundancy that another driver with less service than him had been kept on and did not realise this until after he had been dismissed.
It was the contention of the appellant that a genuine redundancy situation did not exist at the time of his dismissal but that if it did that he was unfairly selected for redundancy.
The appellant was employed elsewhere from January 2012 to May 2012 on a part time casual basis and earned on average €200.00 per week.
Determination:
The Tribunal is satisfied that the future loss of the large Contract necessitated Redundancies at some stage in the Respondent Company. The Tribunal, however, is not convinced that the loss of this Contract was imminent in December 2011 and that there was a requirement for redundancies at that time.
The Respondent failed to call any independent witness or produce any documentation in support of its version of events in relation to the loss of the large contract contract or of the circumstances in which services continued to be provided to the latter until the autumn of 2012.
The Respondent failed to produce any documentary evidence or independent witness to support its version of events in relation to the arrangement entered into with an Independent Haulier for the period from end of December 2011. The Tribunal considered some of the evidence of the Respondent’s witnesses to be unreliable surrounding this particular issue.
In relation to the drivers re-engaged as Employees in September 2012, the Tribunal was informed that the necessity to re-engage these Drivers resulted from the acquisition of additional work from an important customer of the Company. No documentation in support of this contention was furnished to the Tribunal.
On the specific issue of the circumstances under which the Claimant left his employment the Claimant advised the Tribunal that he was told that there was no more work and accepted this in good faith. The Respondent, however, advised the Tribunal that the Claimant had opted for voluntary redundancy when he was not comfortable with proposed changes in work practices and secured a position that he wished to take up with a different Employer. On balance, the Tribunal preferred the Claimant’s evidence on this issue as the Tribunal did not find it credible that he would have voluntarily left a job paying him a Gross Salary of €695 per week for one that paid approximately one third of that figure.
The Tribunal is of the opinion that the Respondent has failed to discharge the burden of proof upon it to satisfy the Tribunal that the termination of the Claimant’s Employment was for reasons of redundancy involving a fair selection process and accordingly the Tribunal finds that the Claimant was unfairly dismissed.
The Tribunal awards the Claimant the sum of €20,000 by way of compensation. For the avoidance of doubt in the matter, the Tribunal confirms that this sum is in addition to the sum already received by the Claimant in the form of a redundancy payment.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)