EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Simona Pranckuviene
- appellant UD445/2013
against the recommendation of the Rights Commissioner in the case of:
Ard Services 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 T. O'Grady
Mr N. Dowling
heard this appeal at Tullamore on 28th October 2014
Representation:
Appellant(s) : Mr Seamus McNamee
Congress Information Centre, Friars Mill Road, Mullingar, Co. Westmeath
Respondent(s) : Mr Tiernan Doherty,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing against the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference: R-118493-UD-11/RG.
Determination
The Tribunal has carefully considered the evidence adduced at the hearing. The appellant had been working at the delicatessen counter at the respondent’s Tullamore service station since September 2008. In addition to her delicatessen work the appellant would also work during some shifts as a sales assistant a position which attracted a lesser hourly rate from that of delicatessen assistant. The appellant would therefore be paid a higher rate than the other sales assistants at the site.
In December 2010 the service station had a fire which left the shop gutted. For a period of time thereafter all the employees including the appellant worked in a temporary portacabin and they did so on whatever their then rates of pay were although clearly there was no delicatessen counter in the portacabin. The respondent in its evidence said it endeavoured to keep all the employees working their full hours during this period of time.
By the summer of 2011 the new shop was ready to open. The appellant and her fellow employees were informed that the decision had been made to discontinue with the delicatessen counter with a subsequent loss of those positions. The company was in effect moving forward with alternative food options which involved pre-prepared items delivered to the shop which could be heated where appropriate. It was decided that the sales assistant would be in a position to carry out this food preparation in addition to the task of being cashier at the till.
Really, the main difference seems to have been that the service station would now operate with two members of staff being on the premises at any time. Heretofore there would have been three employees on the premises one of which would have been the delicatessen assistant.
The appellant accepts that her position was being made redundant. There can be no doubt that the appellant was offered an alternative job and it was this alternative position which became a problem between the parties. The appellant would be expected to take a drop in her hourly rate of €2.00 being the accepted rate for sales assistants and in addition there was no guarantee of a full time 37.5 hours per week.
The Tribunal was given the benefit of the contractual history between the parties and there can be no doubt that the full time status of the appellant’s contract of employment was always an issue and came to a head in and around May 2011 with the respondent paying a once off lump sum payment as recompense for it’s own errors in this regard.
From May to November 2011 the appellant continued working at her old pay rate of delicatessen assistant although by June 2011 she was back working in the shop which no longer had a full delicatessen counter.
The appellant knew that the contract on offer in September / October was significantly less desirable from the one she had been operating on but the correspondence between the parties consists only of two emails and it is difficult for the Tribunal to know how vociferously the appellant made her case having regard to a fulltime contract as against looking for an enhanced redundancy package.
In her oral evidence before the Tribunal the appellant made the case that it wasn’t the reduction in her pay rate that she was concerned with, but rather the fact that there was no guarantee of a full 37.5 hours per week on offer. That was the appellant’s primary difficulty with the proposed alternative employment being offered. This is not apparent in the letters but the Tribunal has to have some sympathy for the appellant building up her years of service at a particular rate and number of hours and being asked to take on a position that is not only paid less but could conceivably only be for seven hours per week.
In adducing evidence the bigger picture of the workforce was not given to the Tribunal. The company did not look to other employees on the shop floor to be made redundant an act which may well have secured the appellant’s full time hours. There was no evidence of the criteria used for the selection process. The respondent company failed to engage with the appellant in a meaningful way and the redundancy offered in this case appears to have been brought about through a lack of communication by both sides.
On balance, the Tribunal finds the appellant was unfairly selected for redundancy but in circumstances where the appellant had been equivocal about what she had wanted for herself at a time that the company was attempting to restructure.
The Tribunal awards the appellant the sum of €12,000.00 under the Unfair Dismissals Acts, 1977 to 2007. In awarding this compensation the Tribunal has taken into account the redundancy payment made to the appellant. The recommendation of the Rights Commissioner is therefore upset and the appeal succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)