EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
RP2038/2011
Shahzad Asmed, - claimant UD1520/2011
MN1587/2011
WT598/2011
Against
Touzel Limited, - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Ms J. Winters
Mr T. Brady
heard this claim at Dublin on 2nd August 2013, 16th April 2014 and 27th May 2014.
Representation:
Claimant: Mr William O'Reilly, Steen O' Reilly, Solicitors, 31/34
Trimgate Street, Navan, Co Meath
Respondent: ESA Consultants, The Novum Building, Clonshaugh Industrial
Estate, Dublin 17
At the outset of the hearing the claim under the Organisation of Working Time Act, 1997 was withdrawn.
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent trades as a service station including a shop and PS is Licensee Operator. The oil company own the property. The shop was renovated in 2004. In 2009 the profit margin started to diminish. A new motorway which bypassed the town caused a downturn in the business. Fuel values dropped 30%.
PS was advised that he needed to change the business and that staffing levels were too high. Five staff worked the night shift which included leaders. The night shift ran from 11 pm to 7 am. A pool of five staff worked the night shift and there was the possibility that this could be reduced to two to three if the respondent was to close the shop and leave the hatch open only. The claimant worked the night shift. He had poor communication skills.
PS consulted a HR consultant company and spoke with VF. He expressed his concerns and wanted to be fair to all staff. PS accompanied her through the building on one occasion. PS saw that there was room for manoeuvre on the night shift and staff could be reduced. Night time income had reduced and staff were less under pressure on the night shift. Lead employees conversed with employees regarding the possibility of redundancies. PS instructed VF to observe employees and look at procedures. VF was asked to draw up a matrix when she had gathered all the relevant material. She consulted with PS and completed the matrix.
The claimant had taken holidays and returned home and it was unclear when he might be returning to work. The claimant did not inform the respondent of his return date. He was not rostered for the week of 1st June 2011. Employees are asked to contact the respondent on their return from holidays.
In around 3 June 2011 both PS and VF met each employee separately including the claimant. PS went through the matrix with the claimant. The claimant was advised of the possibility of redundancies. The claimant objected to the entire process and would not fully engage. He disputed one or two points and queried his scoring. He was very negative and very defensive. Having discussed the matrix with the claimant his scoring was adjusted slightly upwards on a second matrix. Two employees selected for redundancy worked the night shift. Some employees working the day shift had opted for voluntary redundancy. The employees with the lowest scoring were selected for redundancy. At the conclusion of the meeting the claimant took the paperwork home with him. He seemed to be under the opinion that he was selected for redundancy. PS explained to the claimant that he would go through the matrix again with him.
The claimant did not return to work following that meeting. PS made many attempts to contact him both on his landline and his mobile phone but was unsuccessful. PS did not dismiss the claimant or make him redundant. He heard from his colleagues that the claimant was seeking legal advice. RP50 redundancy forms were prepared for redundancy purposes.
Claimant’s Case:
The claimant commenced employment on 15th September 2007. His role was of shop assistant. The evening shift ran from 3 pm to 10 pm and the night shift ran from 10 pm to 7 pm. He had worked both these shifts during his tenure. He reported to E, his line manager.
On 29th May 2011 he became aware he was not rostered for the following week. He called his Manager and she subsequently invited him to a meeting the following Tuesday. He never saw anyone observing him while he was working in the shop.
He was unaware of the reason why he had to attend a meeting. He thought it probably concerned the roster. He was presented with a matrix which was already completed. He was unhappy with his scoring and disagreed with it. It was not explained to him the significance of this document. He was unaware that the respondent wanted to make redundancies in the garage. He was not aggressive at the meeting. A second meeting followed the first meeting. His scoring on the matrix was slightly changed upwards but he was still unhappy.
In or around 5th June 2011 he met PS and VF and was told that he had been selected for redundancy. A figure of €3,200 was expressed verbally. The claimant was very upset and was asked to sign a redundancy document. He felt under pressure. He said he would not sign the document and wanted to take legal advice. PS made it clear to him that he had no future in the company. The claimant felt the decision taken by the respondent was pre determined.
The claimant sought legal advice after the termination of his employment.
Shortly after the termination of the claimant’s employment he suffered an injury and was unable to work for six months. His family supported him during the time. Subsequently he secured alternative employment.
Determination:
The Tribunal accepts that there was a redundancy situation in that the business of the employer required significant savings to be made. However, the respondent did not show to the satisfaction of the Tribunal that it acted reasonably in determining what employees should be considered for redundancy or in determining the method of selection of the redundant employees.
The Tribunal is not satisfied that the night time workers were in a class of their own such that day time employees should not have been considered for possible redundancy. The claimant himself had shown flexibility in terms of hours.
In relation to the choice of employee for redundancy the Tribunal is not satisfied that the matrix presented was fair. It contained a number of subjective unverifiable selection criteria such as loyalty, positive manner, pro active, motivation, team player and identify alternative solutions to problems.
As a matter of fact it is clear on hearing and considering all the evidence the decision to terminate the claimant’s employment was taken before there was an opportunity for consultation. Despite truncating his holidays and returning from his home country early, the claimant was not rostered for any work in June.
The claimant was called to a meeting that he believed was about rostering and presented with a matrix and a mark for the consideration of the employer for his redundancy. He was asked for his immediate reaction and despite his employer believing that he had poor communication skills, he was not given a copy to take away to consider.
The Tribunal accepts the decision to terminate the claimant’s employment was taken at the latest by 5 June 2011 and in the circumstances where the claimant had not been given information about a complaints procedure or an appeals procedure it was reasonable for him to take it that he was being made redundant. The Tribunal accepts that he was offered a payment of €3,200.00 approximately and asked to sign a redundancy form.
The Tribunal finds that the claimant was unfairly dismissed and awards him €16,000.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also awards him €1,076.66 being the equivalent of two weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The claim under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)