EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Nigrell UD690/2013
-appellant
against the recommendation of the Rights Commissioner in the case of:
Sandra Graham
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. S. Mahon
Members: Mr. P. Pierson
Ms H. Henry
heard this appeal at Longford on 3rd June 2014 and 22nd September 2014
Representation:
Appellant: Mr. K. Baneham BL instructed by Mr. Donncha O'Connor,
Johnson & Johnson, Solicitors, Ballymote, Co Sligo
Respondent: Mr. John Barry, Management Support Services,
The Courtyard, Hill Street, Dublin 1
Background:
This case is before the Tribunal by way of an employer appealing the Recommendation of a Rights Commissioner, ref: r-127921-ud-12/SR, under the Unfair Dismissals Acts, 1977 to 2007. The employer is referred to as the employer or the appellant and the employee as the respondent or employee.
The gross weekly pay was agreed at the outset as being €690.46. The company is a private unlimited company.
The sole activity undertaken by the appellant company is the sale of a drug that regulates weight or a weight watch product. The respondent director goes to pharmacies and GP’s to promote the product. The respondent employee was a pharmacy programme manageress. Her duties related to the sale of the weight watch product.
Appellant / Employer case:
The Tribunal heard evidence from BF who is a director of the company. He is a pharmacist and he described the nature of the business to the Tribunal. He brought the product over from the UK. Basically they sell weight watch or dietary product to pharmacies. He calls to the pharmacies to vet them to see if they are suitable to sell the product. He then trains the pharmacy staff about the product. He also calls to GP’s to explain and to familiarise the GP’s regarding the product. The procedures regarding the process are very strict.
The witness explained that the claimant’s role was to train people to use the product and the procedures. However, if there were any queries outside of the procedures, he himself would phone the pharmacies personally and the conversations were taped by him. This was because of the strict process/procedures. It is for a GP to decide if a person is suitable for the product.
The claimant covered circa 65 pharmacies and a colleague of hers had circa 90 pharmacies to cover. There were only two of them doing that particular type of work i.e. the work was being done by the two pharmacy programme manageress
The witness explained that his work entailed calling to GP’s. The purpose of this was to make the GP aware of the product and to explain the strict guidelines relating to the product. He was the only person who called to the GPs because (he is a pharmacist) the GP might ask any question about the product for example formulations and weights.
The role of training the pharmacists was diminishing in 2009 and 2010, because the respondent and her colleague had quite simply trained the pharmacists that were selling the products. Therefore it was becoming difficult to fill the respondent’s work day as the visits to the pharmacies diminished for training purposes and the respondent did not have clinical knowledge to visit the GP’s.
The witness told the Tribunal that he made the decision to make the respondent’s role redundant and that “it was a hard thing to do”. However it was getting harder and harder in the preceding two years to fill her working day. The respondent could not answer the GP’s questions because she had not got the qualifications. They did eventually recruit someone to call on the GPs but that person has a science degree and is also a dietician. That person left and another person who took over the role has two degrees and a Masters in health education. Also the role of pharmacy programme manageress is different now because the person has to visit GPs Pharmacists and hospital consultants. The witness explained that it would not have been possible to put the job on hold for four years to allow the claimant to gain the necessary qualifications. It was nothing personal but she did not have the qualifications for the route the job was taking.
A job advert that was opened to the Tribunal did not specify that qualifications were needed but the witness explained that it was a shortened version of the advert that had been online and once you access or reply to the advert online then an applicant cannot proceed through the electronic version until the qualifications were put into the application form.
Respondent’s case:
The respondent SG gave evidence of her former employments before she commenced with the appellant. She told the Tribunal that as a pharmacy technician she often had reason to speak with doctors in hospitals regarding prescriptions etc.
Her positon with the appellant was mainly training staff in pharmacies, meeting patients and attending patient screening days. Any medical questions were answered by BF. SG said that on she met with BF on Wednesday 19th September 2012. She expected to meet him at a pharmacy as would be the norm but instead was told to at a local hotel. He was with the accountant and there was a lot of paperwork in front of them. She was introduced to the accountant and then conversation was all about re-structuring. Redundancy was mentioned and SG asked if he was talking about her. She was shocked when he confirmed that it was, he said that she would not be able to attend GP’s. SG said that she would have no problem calling to GPs and asked about re-training. BF told her to think about it and she told him, there was nothing to think about, she wanted her job.
SG stated that she went to the bathroom and was physically sick. She felt that everything had been taken from her and didn’t know how she was going to face people in the profession ever again. She went on holidays as planned and returned to work on Monday 1st October. She worked that day and on the same evening BF rang advising her of the redundancy and said that she didn’t have to work out her notice. SG remained in work until the Friday and the following Monday her car and laptop were taken back. She told the Tribunal that she could have been given a trial period of working with GPs with supervision or set up appointments, or anything to give the appellant a chance to find something suitable for her in the company.
Determination:
Having considered the evidence adduced at the hearing the Tribunal disagrees with the findings of the Rights Commissioner. It is the decision of the Tribunal that there was a genuine and honest redundancy due to the changing nature of the business and the consequent change in the required skill sets and qualifications. The respondent’s representative accepted that there was a valid redundancy situation and that the respondent’s complaints related to a failing on the
employer’s part in affording fair procedures.
The Tribunal was not persuaded by the respondent’s arguments that in all instances an employer must
(a) afford the affected employee an opportunity to respond to the proposed redundancy or
(b) facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or
(c) have a right to appeal the decision to make the employee redundant.
Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal. For that reason the Tribunal disagrees with the findings of the Rights Commissioner and determines
that the employee was lawfully dismissed by reason of redundancy.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)