UD773/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                            CASE NO.

UD773/2012

Employer         -           appellant

against the recommendation of the Rights Commissioner in the case of:

Employee        -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Browne

                     Mr F. Dorgan

heard this appeal at Wexford on 12th November 2013

Representation:

Appellant:       Managing Director and Production Manager

Respondent:    In person

Background:

This appeal came before the Tribunal by way of an employer (the appellant) appealing against the Rights Commissioner Recommendation reference: r-121291-ud-12/JOC.

An independent translator was present at the hearing.

The company was at its height of the business between 2006 and 2008. During this time it had 36 employees. However, business levels began to decline after 2008 and the company was forced to reduce staffing levels.

On 22 December 2011, six welders were made redundant with a redundancy payment paid to those employees with the relevant service. It was hoped that some orders would be received over the Christmas period but this was not the case. The respondent in this case also performed welding work. However, it was the evidence of the Production Manager (and accepted by the respondent) that the respondent was given shotblasting work to do during the last weeks of his employment as the company did not have enough welding work to offer him. This occurred a few times a week for up to 50% of the time worked by the respondent.

When additional orders did not materialise throughout December the Managing Director and the Production Manager met on 24 January 2012 and reached a decision that one further redundancy was required. The selection was carried out using a last in, first out selection process by section/area. The Tribunal was informed that a skill matrix was compiled but the company did not have this document at the hearing. The respondent was the last in but in addition the employees that were retained over him were qualified welders carrying out much more advanced welding.

The respondent was asked to attend at the office where he was informed of the decision and provided with a letter dated 25 January 2012 which stated that due to a sudden downturn in business there was no work available for the respondent and that the company had no option but to terminate his employment. The Managing Director stated that an eye injury sustained by the respondent in or around this time was unconnected with the selection for redundancy. The respondent did not have the requisite two years’ service to entitle him to a redundancy payment. The respondent was provided with one week’s pay in lieu of notice.  

The respondent accepted that a number of employees named by the company had commenced employment prior to him and therefore had longer service. However, there was a dispute between the parties as to whether or not the respondent was a qualified welder. The respondent stated that he was but the witnesses for the company stated they were unaware of any such qualification and that the respondent had in fact been trained by the company in general welding duties.

The respondent contended that there were two employees whose names did not appear on the list of employees provided to the Tribunal. The respondent submitted that these employees were also welders and continued in the employment after him despite commencing work with the company after him. The witnesses for the company stated that one of these employees was a highly skilled welder working on units used in power stations and that the respondent was not qualified to do this work. The other employee worked in a different area and it was disputed that he had carried out the same work as the respondent. The respondent also stated that another employee who started work after him was now carrying out his role but this was disputed by witnesses for the company.

The company received a large once-off order in early June and the Production Manager gave evidence that he contacted the respondent with an offer of work as it was general welding work.   There was a dispute between the parties with regard to the response of the respondent to the offer of work. It was the Production Manager’s evidence that the respondent had refused the offer of work and laughed on the phone. A number of days later the respondent attended at the factory and said that he was ready to start work later than day. It was the respondent’s evidence that he had told the Production Manager on the telephone that he would see him the following week to talk in person about the offer of work.

Determination

Having considered the evidence adduced at the hearing the Tribunal accepts that the appellant company had a need to effect redundancies because of a reduction in workload. The Tribunal further accepts that the 7 employees selected for redundancy from the pool of 16 welders were selected on the basis of last in first out (LIFO) and the respondent employee was one of these.  

There was a conflict of evidence regarding length of service of one of the retained welders but the Tribunal accepts that this employee had more skills than the respondent albeit that he may have had less service than the 15 months’ service of the respondent.

The Tribunal finds that the respondent employee was dismissed by reason of redundancy and that his selection for redundancy was fair. Accordingly, the Tribunal allows the appeal under the Unfair Dismissals Acts 1977-2007 and upsets the Rights Commissioner Recommendation reference: r-121291-ud-12/JOC.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)