EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Anne Smart UD1697/2012
against the recommendation of the Rights Commissioner in the case of:
Kilkenny Womens Refuge Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this appeal at Kilkenny on 25th April 2014
Representation:
Appellant:
Ms Kathleen Funchion, SIPTU, 18 Lower Patrick Street, Kilkenny
Respondent:
Ms Catherine Day, Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-122644-ud-12/JT.
Respondent’s case.
The respondent is a charitable organisation which is funded to a large degree by the Department of Finance and the Department of Children and Family. The claimant was employed as an Administrator from 14th January 2008 until she was dismissed by way of redundancy on 1st May 2012. There was only one position of administrator and the claimant was not qualified for any other position within the organisation. There were further redundancies subsequent to the claimant’s dismissal.
There had been cuts in funding in the order of 3% to 4% in the couple of years preceding 2012 but the cut for 2012 was to be 10%. This meant that the respondent had to reduce costs by approximately €100,000.00. Furthermore, new procedures required the respondent to run without getting into debt.
The co-ordinator (TS) for the respondent identified the claimant’s position as a possible redundancy as this role could be taken over by TS while still carrying out her own duties. The claimant was invited to suggest alternatives ways of making savings in order to prevent her position being made redundant. Some suggestions were made but these would not result in savings of anywhere near 10%.
The claimant was notified that her job was at risk of being made redundant and subsequently notified that she was in fact to be made redundant. The claimant was informed of her right to appeal but despite the claimant stating that she had sent an appeal to one of the board member’s homes no such appeal was ever received by the respondent.
It was the respondent’s position that the claimant was properly dismissed by way of redundancy as fair procedures were followed and her role was subsumed by the co-ordinator (the claimant’s manager).
Claimant’s case.
The claimant was called to a meeting in December 2011 and informed that her position was at risk of being made redundant. However, the claimant objected to the fact that she was not told beforehand what the meeting was to be about and she was not given an opportunity to have her trade union representative present at the meeting. Thereafter, the claimant was represented at meetings by her trade union representative. The claimant made some suggestions as to cost cutting and one of her suggestions in Mid-April 2012 was to reduce her working hours by 20% and thereby reduce her wages by 20%. However this offer was withdrawn at a meeting of 30th April 2012 when the claimant was informed that a 10% pay cut was also to be implemented. The following day the claimant received written notification that she was to be made redundant.
The claimant showed the Tribunal a copy of a letter appealing the decision to make her redundant and stated that she had sent the original to a board member of the respondent at the time of her redundancy. The claimant did not inform her trade union representative about this appeal and although she was surprised not to get a response from the respondent, the claimant never enquired any further about this appeal. It was also confirmed by the claimant that she did not show this copy to the Rights Commissioner and had raised it for the first time at the EAT hearing.
It was the claimant’s position that she was treated very badly by the respondent and was unfairly dismissed from her employment.
Determination.
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was not unfairly dismissed by the respondent.
The claimant was dismissed by way of redundancy.The Tribunal is satisfied that a genuine redundancy situation existed and that the claimant was fairly selected for redundancy. There was only one position of administrator and this position was held by the claimant. Thereafter, the duties appertaining to the role were taken on by a manager. Another employee was not taken on to replace the claimant.
Fair procedures were followed in the selection and notification of the claimant for redundancy. The claimant was aware of her right to appeal the decision to dismiss her by way of redundancy and produced a copy of a letter purporting to be a copy of her appeal which she told the Tribunal was sent to a particular board member. However the claimant did not tell her trade union representative about this appeal and although she received no correspondence in respect of her appeal she did not follow up on this appeal. Furthermore, it was common case that there was no mention of this letter of appeal at the hearing before the Rights Commissioner. It was the respondent’s evidence that it had not received any appeal and the Tribunal accepts this.
Accordingly, the Tribunal upholds the decision of the Rights Commissioner Ref: r-122644-ud-12/JT and the appeal under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)