EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
John O'Callaghan UD1382/2012
-appellant
against the recommendation of the Rights Commissioner in the case of:
JCDecaux Ireland Limited
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard this appeal at Limerick on 19th June 2014
Representation:
_______________
Appellant: In Person
Respondent: Jo De Lamar, JHR Solutions, 28 St Eithne Road, Dublin 7
This case came before the Tribunal by way of an employee appeal of the Rights Commissioner Recommendation ref: r-120738-ud-12 under the Unfair Dismissals Act 1977 to 2007.
Respondent’s Case
Among other areas of business the respondent is responsible for the maintenance of automated public conveniences ie public toilets. In 2008 the councils either closed a number of APCs or sought a reduction in the maintenance fees. Financial evidence of the business losses in this area were supplied to the Tribunal. After many cost cutting measures, in 2011 it was decided that redundancies were necessary
The appellant was an APC technician. Each APC technician had a specific route that covered a geographical area. It was decided to amalgamate 2 maintenance routes allowing for one APC technician position to be made redundant. Only the APC technicians in the appellant’s geographical location were considered for redundancy as that was the only area where two routes could be amalgamated. The relief technician was not considered as that position covers the 32 counties.
The selection criteria was decided by the Finance Director and completed by the Technical Director who was responsible for the appellant’s area of work. After receiving the scores from the Technical Director and the manager the Finance Director then compared them to the annual performance appraisals to ensure that the scores were in line with the appraisal results. The appellant received the lowest score and was therefore selected for redundancy.
The Finance Director and the Technical Director met the appellant on the 28th of November 2011 to inform him that he had been selected for redundancy. At this meeting the appellant was informed of the financial situation that led to the requirement for redundancy, the selection criteria used for the redundancy and they gave him the letter that stated,
‘Further to our meeting of the 28th of November 2011, I regret to inform you that your position is redundant…You have been selected for redundancy on the basis of an objective set of criteria which were applied fairly, the results of which have been attached to this letter.’
The appellant was surprised and disappointed and refused to accept the redundancy cheque until he sought advice. The Finance Director called the appellant a few days later where he said he would now accept the cheque and the selection criteria were explored in greater detail. On the 9th of December the appellant requested to appeal the decision to select him for redundancy and formally requested an appeal on the 16th of December 2011.
The appeal meeting was held on the 1st of February 2012 by the Managing Director with the Finance Director in attendance. The scoring was adjusted as a result of the appellant’s representations but he remained the lowest scoring so the decision to select him for redundancy was upheld.
The respondent Board made the decision not to inform any of the staff that there were potential redundancies or to inform any individuals that their employment was at risk to avoid ‘the whole company being paranoid.’
The respondent was not aware of any grievance the appellant may have had with his supervisor.
Appellant’s Case
The appellant was informed he was selected for redundancy without any prior notice, consultation or without any fair procedures. The appellant was never informed that he could appeal the decision. The appellant would have been willing to do the relief APC technician position.
The appellant felt that his supervisor did not like him and picked on him, he reported this to the Technical Director. The appellant gave comprehensive evidence of incidents of bullying by his supervisors. The appellant did mention his grievance during a disciplinary meeting but was afraid that appealing the disciplinary decision would further antagonise his supervisors. A disciplinary action taken by his supervisor was used to lower the appellant’s score on the redundancy selection matrix.
The appellant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The Tribunal carefully considered the evidence adduced and is satisfied that a genuine redundancy situation existed within the respondent. Although the redundancy situation was genuine, the respondent applied at best limited procedures but wholly unfair procedures in effecting the redundancy.
The appellant’s preferred remedy is re-instatement but given the circumstances this is not appropriate. The Tribunal vary the Rights Commissioner Recommendation ref: r-120738-ud-12 under the Unfair Dismissals Act 1977 to 2007 and make an award of €4,000.00 in addition to the redundancy lump sum received by the appellant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)