UD29/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                 CASE NO.

                                                                                                                        UD29/2012

Linda Andreucetti      -           claimant

Against

Sparkglade Limited    -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms P. McGrath B.L.

Members:        Mr E. Handley

                        Mr. S. O'Donnell

heard this claim at Dublin on 14th May 2013 and 25th February 2014

Representation:

Claimant: Smyth & Son, Solicitors, Rope Walk, Drogheda, Co Louth

Respondent: Mr. David Farrell, IR/HR Executive, IBEC,

                     Confederation House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

Determination

The Tribunal has carefully considered the evidence adduced in the course of the two days of evidence. The employer herein is a limited liability company operating a number of franchised retail outlets. In and around 2009 the company was invited to take on a retail unit in Bayside in Sutton. This unit had a pre-existing staff of which the claimant was one. The claimant had been an employee on this site since September of 1998 and was, in fact, a manager within this store at the time the then respondent company took over the helm.

The Tribunal accepts the largely unchallenged evidence tendered by the respondent that the Bayside unit was not operating within a comfortable profit level.   For a number of years after 2009 margins were very tight and by 2011 the respondent employer was anxious to try and enhance the company’s financial position. To this end, the respondent had to consider the possibility of making redundancies. A study of remuneration costs was believed by this employer to be way too high and that the preferred option was to make five redundancies rather than cut the hourly rate, an act already implemented in the workplace in the recent past. In his evidence, on behalf of the company, Mr JP indicated that a decision was made to try and reduce the annual wage bill by €120,000.00.   It was decided that the only way of achieving this target was by making at least five persons redundant.

In these circumstances the respondent does not appear to have realised that the company had not the critical numbers for a collective redundancy and whether Mr. JP did gather the staff together on or about the 18th of July 2011 for the purpose of informing the staff that redundancies would have to be made, he did not make known to the staff that he had certain obligations to fulfil such as notifying the Minister and engaging in a consultative process. It is noted that he notified the Minister on or about the 19^th of July on advice from IBEC.

Curiously on the 19^th of July the claimant was called in for a meeting at which she was surprised to be told that her own position was on the line and that the company would in all likelihood be looking to make her redundant.

The Tribunal fully accepts that the scenario flew in the face of the company’s obligations surrounding the making of collective redundancy and in particular there was no 30 day consultation period entered into.

By a letter dated the 21^st of July 2011 the employer had written to the claimant notifying her that her position had been made redundant.   A subsequent attempt was made to recognise the need for a consultative period by letter of the 12th of August but this cannot be the case given the fact that the claimant was clearly targeted for redundancy from the start.

There can be no doubt that the claimant was never informed how her position came to be selected for redundancy and the Tribunal accepts that even in the course of evidence before it the criteria for making this selection was never clearly articulated. The claimant was therefore never allowed the opportunity to argue her corner and given the fact that the claimant was told that she was being made redundant one day after the general announcement was made the Tribunal accepts that this claimant was fighting a rear-guard action;

By way of a fall-back position the respondent company attempted to rely on its entitlement to make the claimant statutorily redundant by reason of the fact that she was being replaced by an immediate family member. The Tribunal is not persuaded by this argument where the respondent is a limited liability company as such incapable of being family members. Ultimately this issue is a side issue as it is quite clear to this Tribunal that the claimant was unfairly selected for redundancy and therefore unfairly dismissed under the Unfair Dismissals Acts, 1977 to 2007.

The Tribunal can never know whether or not the claimant may have been made redundant at the conclusion of a lawful consultation process which afforded her a reasonable and fair opportunity to make her own representations. Bearing this in mind the Tribunal awards the sum of €32,000.00 and the Tribunal notes that any redundancy payment already made will be offset against the award made under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) _______________________

     (CHAIRMAN)