UD1248/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                       CASE NO.

Employee        -           claimant

                                                 UD1248/2012

against

Employer         -          respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms J. McGovern B.L.

Members:   Mr M. Flood

                    Mr M. O'Reilly

heard this claim at Dublin on 21st November 2013

Representation:

Claimant:         Ms. Cliona Clancy B.L. instructed by Myles Staunton & Co Solicitors,

Castlebar Street, Westport, Co. Mayo

Respondent:  Ms Suzanne White, Athru Solutions, Unit K 25 Drinan Enterprise Centre,

                        Swords Enterprise Park, Feltrim Road, Swords

Background:

The claimant who has 18 years sales experience was working with the respondent company since 2006 as a sales representative and was based mostly in the west of Ireland. The company’s business is the sale and distribution of hygiene products. It was the company’s case that sales decreased by 50% from the height of the respondent’s business. Rural areas, in the west of Ireland were particularly affected by this decrease. A director recalled that in November 2010 a sales meeting was held to discuss sales plans for the next quarter. However, sales continued to decrease throughout 2011. Giving evidence the claimant did not dispute that declining sales were discussed at sales meetings but he stated it was discussed in the context of falling prices. The purchasing and selling of cheaper brands caused the lowering of sales figures but the claimant had retained his customer base despite huge competition.

A number of sales meetings were held throughout 2011. The director acknowledged that the topic of redundancy was not brought up at the early meetings but latterly staff were informed that redundancies would have to take place and that their positions were being scrutinised.

It was also the director’s evidence that there was a two-day meeting in August 2011 and that the topic of redundancy was introduced at that meeting. He stated that the sales staff were told “quite categorically” that it was possible redundancies would take place at the end of the year.

The director also stated that at a meeting on 23 November 2011 the staff were again informed of the likelihood of redundancies. A blank redundancy selection matrix document was provided to each member of staff containing the headings under which the selection would be made. The directors provided the relevant headings for the matrix to their representative who compiled the matrix document. The claimant refuted in evidence that he was provided with the selection matrix document.

The claimant recalled in evidence that meetings may well have taken place in August and November but he refuted that the issue of redundancy was raised at these meetings. The meetings were about sales and ideas for developing sales. The meetings followed the usual format of a group sales meeting followed by an individual meeting.

It was the director’s evidence that the selection process commenced in 2012 and was based on performance throughout 2011. The director stated that at the time of the selection there were three sales roles and one redundancy was sought in this area. One sales representative pointed out that he was due to retire in early 2012 so he was not considered for redundancy. It was the director’s evidence that this employee retired in early 2012. It was the claimant’s evidence that it was his belief that this employee has not in fact retired. It was accepted by the company that this employee had less service than the claimant.  

The focus on redundancies at that time was in the area of sales. The administration and warehousing areas were also assessed however the redundancy process had not commenced in those areas at that time. At the height of its business in 2006 the company employed 18 employees but by 2012 this had reduced to 16 employees. To date the number has decreased further to 12 employees.

It was the company’s case that the claimant was informed that his position was selected for redundancy on 9 February 2012. He was provided with the results of the matrix on that date and informed that his position was redundant. The claimant was paid his statutory entitlement of €6,264.84 and was paid in lieu of notice. A miscalculation was made with this payment but this was later rectified.

It was the claimant’s case that he first became aware his position was at risk of redundancy when he was informed on 9 February 2012 that his position was redundant. On that day he drove to Dublin to attend the usual sales meeting. He was asked to bring all customer records as was normal for a start of year meeting. Following the group sales meeting where the targets and commissions were provided to the sales representatives, the claimant attended the individual meeting at which he was informed his position was redundant but he was offered the option of resigning instead. The claimant stated that he was asked to sign a non-compete document which he refused. The director of the company disputed that the claimant had been asked to sign such a document or offered the option of resigning. The claimant stated that he was told to take his personal items from the company vehicle and he was later driven to a train station.

The other employee retained instead of the claimant was Mr. R who had longer service than the claimant. The claimant also scored less than this employee in the area of sales. The director stated that the higher score was given to Mr. R as he was closer to his sales targets than the claimant. It was the claimant’s case that the difference in their sales figures was not significant.

It was the claimant’s evidence that another individual (Mr. S) was employed as a sales representative by the company in November 2011 prior to the claimant’s redundancy. Mr. S told the claimant that he was an employee of the company. However, it was the evidence of the director of the company that Mr. S worked as a Brand Manager, not as an employee but as a consultant on an ad hoc basis for which he invoiced accordingly.

The claimant stated that he felt very aggrieved that he was not given prior notice that his position was being considered for redundancy and that he would have considered alternatives if they had been offered. The claimant gave evidence of loss and efforts to mitigate that loss.

Determination:

Having considered the evidence the Tribunal finds that no formal procedures were adopted in terms of notifying the employees of a redundancy situation. The Tribunal does not accept any adequate selection process was put in place regarding this redundancy and it accepts the claimant’s evidence that he was not made aware of any matrix to determine the selection process. The Tribunal does not accept that the claimant was ever notified that his position was at risk. Indeed he did not even receive a letter confirming his redundancy in writing.

There was no offer of alternative employment or reduced hours considered by the company. The claimant indicated in evidence that he would have accepted such alternatives. In essence no proper or formal procedures were adopted by the respondent in terms of this purported redundancy. In all of the circumstances the Tribunal finds that the claimant was unfairly selected and therefore unfairly dismissed. The Tribunal awards the claimant the sum of €35,000 under the Unfair Dismissals Acts, 1977 to 2007. This award is in addition to the sum of redundancy paid by the company.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)