UD192/2012, MN148/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                            CASE NO.

Employee        -          claimant                                                                                 UD192/2012                                                                                                                                                             MN148/2012

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms D. Donovan B.L.

Members:        Mr. J. Horan

                        Ms N. Greene

heard this claim at Carlow on 30th October 2013

Representation:

Claimant: Mr. Mark Fitzgibbon Solicitor, Lavelle Coleman Solicitors,

                 20 On Hatch, Lower Hatch Street, Dublin 2

Respondent: Ms Claire Bruton BL instructed by Ms Kathryn Matthews Solicitor,

Malcomson Law, Iceland House, Arran Court Smithfield Dublin 7

Respondent’s case:

The Tribunal heard evidence from PM witness for the respondent. He explained that the respondent company is a private family ownedquarry business. The claimant was employed initially in charge of tarmacadam. He then worked as a truck driver. Then from 2002 to 2009 he was a concrete plant operator.  In 2009 he worked as a salesman and joined the sales team.   There were four salesmen. The witness outlined the service that the salesmen had and that the claimant had the least amount of service as a salesman.

Twenty workers were made redundant in the six-month period surrounding the time the claimant was made redundant. The reason they let the claimant go was “purely” because of a redundancy situation. There were no alternatives for the claimant other than redundancy. They did not call the claimant to a meeting about the redundancy. The witness did not know of any meeting being held regarding redundancy. The witness did not have any involvement in a meeting regarding redundancy.   To his knowledge the claimant did not appeal the decision to make his position redundant and to his knowledge the claimant was not offered an appeal.

Claimant’s case:

The Tribunal heard evidence from the claimant. He received a phone call from the owner inviting him to a meeting. He went to the meeting and was told by the owner that he had to let 18 to 20 workers go to cut the wage bill. The owner told him that he did not have money to pay him. The claimant told the Tribunal that he strongly resisted the redundancy because he was capable of doing other jobs.

The claimant gave evidence as to his loss.

Determination:

Having considered the evidence of the parties adduced at the hearing and the legal submissions of Counsel on behalf of the respondent, the Tribunal accepts that the respondent had a need to effect redundancies for economic reasons and the fact that the respondent had decided to carry on the business with fewer employees is a redundancy within the meaning of 7(2) (c) RPA 1967.    

The Tribunal is of the view that it is entitled to take into consideration the reasonableness or otherwise of the conduct (whether by act or omission) of the respondent in relation to the dismissal of the claimant and this “reasonableness” criterion confers on the Tribunal a discretion in determining whether the dismissal of the claimant was unfair or not.  

The Tribunal finds that the conduct of the respondent in effecting the redundancy of the claimant was otherwise than reasonable and fair for the following reasons:

1. The respondent failed to adhere to any or any fair procedures.

2. The respondent failed to comply with the provisions of section 17(1) of the Redundancy Payments Act 1967 which provides that an “employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal…….”.

3. There was no discussion whatsoever or howsoever with the claimant in advance of the decision to make him redundant.   The claimant was simply told on 15^th December 2011 that he was being made redundant there and then.

4. The claimant was not given his statutory notice entitlement and was not paid in lieu of notice.

5. There were no or no meaningful discussions as to the possibility of alternatives to redundancy.

6. The claimant was not offered a right to appeal the decision to make him redundant.

Regarding the selection of the claimant for redundancy the Tribunal is not satisfied that the selection was fair in circumstances where the respondent justified the retention of the other three sales reps by length of service (LIFO) yet on the other hand said it had no procedure and that there was no custom or practice within the respondent company when effecting redundancies.   The Tribunal is further satisfied that the claimant was engaged on a day-to-day basis on duties other than that of a sales rep and could have been retained over other employees with less service and less skills than the claimant.

Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant an amount of €21,000 over and above his redundancy lump sum.

The claim under the Minimum Notice and Terms of Employment Acts 1973-2005 succeeds and the Tribunal awards the claimant an amount of €3,912.00 being pay in lieu of six weeks’ notice.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)