EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD1055/2012
RP804/2012
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr L. O Catháin
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 27th November 2013
Representation:
Claimant(s) : Ms. Anne McShane, MJ O'Connor, Solicitors,
Ormonde House, 26 Harbour Row, Cobh, Co Cork
Respondent(s) : Mr. Conor O'Connell, Construction Industry Federation,
Construction House, 4 Eastgate Avenue, Little Island, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent operates a construction company which was established in 2001. The GM of the company gave evidence of the claimant taking up employment in July 2001 as a foreman having previously worked for his father. The GM’s father was also employed on that date in the role of foreman. From 2008 the business began to suffer the effects of the downturn in the economy.
In and around September 2011 the respondent recalled the claimant mentioning a problem he was experiencing. The claimant alleged he was bullied and stressed by the actions of the respondent’s father and was offered time off work if required.
In December 2011 the decision was taken to put the claimant on short term lay-off. This also applied to a number of other employees and was due to a lack of work. The claimant was described as a well experienced foreman. Employees were told that there was no work planned for 2012. In early January 2012 a meeting was arranged between the claimant and his union representative. The witness understood that the meeting was arranged as a result of him asking the claimant to get moving on a job which was not completed in the agreed timeframe.
At the meeting two matters were discussed including the claimant requesting he be re-graded as a general operative and maintain his current pay. The claimant decided to remain in his position as foreman when he was informed that his pay would reduce to general operative rate. The respondent denied that the claimant’s request to re-grade as a general operative was in any way related to the alleged bullying. The second matter discussed at that meeting related to the temporary lay-off.
One month after lay-off the claimant called to the office of the respondent seeking work and was informed that he had two options either stay on temporary lay-off or seek redundancy. The claimant was informed that the company had no money to pay redundancy however he opted to seek redundancy and signed a letter prepared by the respondent which read “I wish to seek my statutory redundancy due to the unavailability of work...” That letter dated 23 February 2012 was opened to the Tribunal. The respondent confirmed that employees who opted to remain on lay-off were all taken back once work became available. It was denied that the company wanted to get rid of the claimant because of the bullying allegations.
The office manager for the respondent gave evidence of witnessing the claimant calling to the office on the 23 February 2012 seeking work and opting for redundancy.
The claimant’s evidence was that he worked as a foreman for the respondent company with responsibility for managing sites and also working in the general operative role. He experienced difficulty with another foreman the father of the GM who he alleged bullied him causing him great stress. He spoke with the GM at the time and was offered time off work. He felt undermined in the workplace by the perpetrator and was told he was useless.
In late 2011 while assigned to a site management role at premises in Dublin the job took more time than agreed due to flooding at the site leading to much pressure. It was at that time he decided he no longer wanted the role of foreman and suggested he work in a general operative role. In early January the GM met with him and his representative to discuss the possibility of working as a general operative and the temporary lay-off.
The outcome of that meeting was that he would remain on as foreman and it was agreed that the role of foreman would be shared between himself and the GM’s father. Following a month on lay-off he telephoned the GM on the 22 February seeking any work including general operative work and called to the office on the 23 February also seeking any work. He was informed that day that there was no work and that there would be redundancies. The claimant recalled saying that his only option therefore was to take redundancy to which the employer replied that it was up to him. At the time, based on the information from the employer there was no prospect of work and he believed the business was about to close down. He sought redundancy on the pretence that he would not get any further work but later learned that all other employees on lay-off were returned to employment.
The claimant’s representative gave evidence of attending the January 2012 meeting. He recalled the purpose of the meeting was to discuss the bullying being experienced by the claimant and the lay-off. The GM gave a commitment to address the bully allegations at that meeting and agreed the foreman work be shared.
Determination
The Tribunal carefully considered the oral and documentary evidence provided by the parties and in particular note that while on temporary lay-off the claimant applied for and accepted a redundancy payment. There was no evidence that the claimant was denied legal or union advice. A union official had assisted the claimant on an earlier matter however he did not seek advice before opting for redundancy. The Tribunal heard the respondent’s evidence that there was not sufficient work for two foremen and the GM could not lay-off a general operative to make way for a foreman. In all the circumstances the Tribunal finds that the claimant was not unfairly dismissed and the termination of his employment came about by way of redundancy.
The claim under the Unfair Dismissals Acts 1977 to 2007 is therefore dismissed. The claim under the Redundancy Payments Acts 1977 to 2007 succeeds. The Tribunal note that the claimant received his statutory redundancy payment from the social insurance fund.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)