EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee UD385/2012
-claimant
against
Employer
-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. Hennessy
Mr O. Wills
heard this claim at Clonmel on 3rd October 2013
Representation:
Claimant: In person
Respondent: Mr. Rory Kennedy BL instructed by Mr Michael O'Flaherty,
Crean & O'Flaherty, Solicitors, Mill Wood, Carrigduff, Bunclody, Co Wexford
Background:
The respondent company is an electrical wholesale company. It has small outlets in various locations around the country. In Clonmel there is a lighting showroom attached to the warehouse and this is where the claimant worked. The respondent contends that the claimant’s position was made redundant because of economic circumstances. The claimant contends that she should have been offered work in the warehouse or a three day week or part time work.
The Tribunal heard evidence from the managing director and owner of the respondent. He explained that there had been five staff in the Clonmel business and now there are three. The three people are a manager, a van driver and a “counter person”. The manager and counter person had longer service than the claimant but the van driver did not. The claimant’s role was as a sales assistant and she did not perform duties outside that role.
In 2010 and 2011 the company registered losses. The demand for domestic light fittings had decreased. They had another premises in Carlow and they had considered closing the premises. They had to make positions redundant in Carlow.
He spoke with the claimant about the situation and they tried other things to keep trading such as selling furnishings. The respondent invested significant monies to try and make a success of the furnishingbusiness.
He had to choose the claimant’s position for redundancy because she was the only person who worked in the retail lighting area and “this was the only reason”. There was no alternative work for the claimant.
The witness was asked why he could not put the claimant on a three day week as he had done with staff in Carlow and he explained that he could not because Carlow was breaking even and Clonmel was making a loss.
The Tribunal heard evidence from the branch manager of Clonmel. He explained that the claimant’s job and the other workers job were “not transferable” (interchangeable). The otherworkers could do jobs such as driving the van, unpacking, lifting and moving heavy items and were more skilled at advising customers on electrical needs. He communicated to the claimant that the owner was closing the lighting showrooms and that her job was to be made redundant. There was no other role in the company save for her job being made redundant. It was clear the company was in financial difficulties.
The Tribunal heard evidence from the claimant. She explained that she worked in the lighting showrooms. She ordered stock, served customers, processed orders and dealt with electricians and contractors.
She understood that the owner tried to get business every day. The manager told her that her job was being made redundant. She asked why and was told that it was because business was closing down. He told her that she could work her notice or not. The next day or at some other time the manager asked her if she had spoken to the owner. She had not realised that the owner had travelled to speak to her.
It was put to the claimant that no additional staff had been taken on and she agreed. However she maintained that extra hours had been allocated.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that a redundancy situation arose due to a downturn in the Respondent’s business and due to a decision to do the work with fewer staff.
The Tribunal is satisfied that the respondent retained the employees whom he felt best suited the needs of the respondent going forward. The Tribunal notes that out of the three employees retained two had significantly longer service and were more skilled than the claimant and the third employee had skills that the claimant did not have and it was not reasonably possible for the claimant to acquire these skills.
The Tribunal acknowledges that it is preferable that procedures used in effecting redundancies include agreeing selection criteria with employees and engaging in consultation on possible alternatives to redundancy. However, taking into account the efforts made for the past year by the respondent in order to secure the claimant’s job and taking into account the size of the respondent company and the in-depth knowledge the respondent had of his business and staff the Tribunal finds that any lacking in the procedures was not in this instance fatal. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)