EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Astrid Mc Carey UD909/2012
Against
Hugh Lennon & Associates Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. A. O'Mara
Mr J. Moore
heard this claim at Cavan on 1st August 2013 and 5th June 2014
Representation:
_______________
Claimant: Mr. Brian Morgan, Morgan McManus, Solicitors, The Diamond,
Clones, Co Monaghan
Respondent: Mr. Michael O'Sullivan, HR Advisor, Arra Hrd, Castlelost West, Rochfortbridge, Co Westmeath
Respondent’s case:
HL gave evidence of employing the claimant in January 2006. He stated that the claimant’s duties were in the secretarial department and consisted mainly of filing company returns. He also told the Tribunal that business in the area that the claimant worked decreased significantly during 2009 and 2010.
In November 2010 HL gave the claimant an option of taking a redundancy package or working a three day week. She opted for the three day week. In November 2011 HL said that he consulted with his HR advisor and typed up notes for a selection for redundancy process. These notes included issues like unable to work unsupervised and reluctant to adapt or attend courses to advance her position. The claimant returned from maternity leave on 5th December 2011, her work had been subsumed by other personnel and HL advised her of his decision to make her redundant. At a meeting, on the claimants final day of work (23rd December 2011) HL was advised by the claimant that the situation was “all wrong” and she refused to sign a waiver he presented to her.
Under cross examination HL agreed that no other person in the practice had their days of work reduced. He hired his daughter before the claimant went on maternity leave. The claimant was told of her redundancy on the day of her return from maternity and no previous engagement or consultation took place. He was unaware if a redundancy process was gone through for anybody else in the practice but confirmed that nobody else was made redundant. The waiver was introduced on advice from his HR consultant. He did not consider the claimant for any other position and confirmed that the claimant had longer service than the girl who worked at reception.
Claimant’s case:
CL (who was subpoenaed by the claimant’s representative) told the Tribunal that business in the practice had decreased. She said that every position was looked at and when the claimant was on extended maternity leave HL told her that there was no work for the claimant. CL raised concerns that the claimant be made redundant while on maternity leave so discussions were had with a HR consultant. They were advised that maternity leave was protected leave and CL also raised concerns about the hiring of the respondents daughter and how it would be perceived. She was told that all would be fine but she still felt uneasy about the situation.
The claimant initially refused to accept the redundancy payment and CL again contacted the HR consultant. A waiver was sent to her via e-mail and she typed it up. She confirmed that this was done post the initial redundancy meeting. She said that subsequent to the claimant leaving, her work was subsumed by other members of staff.
The claimant told the Tribunal that during busy periods she did all the company secretarial work, annual returns, change in directorships etc. During quiet periods she wrote up accounts, did VAT returns, cash receipts, expenses and other things. She was advised in November 2010 that she could avail of redundancy if she wanted to do so or opt for a 3 day week. She went on a 3 day week but protested saying her job was being done by others. She said that on her return from maternity leave on 5th December 2011 it was evident that the respondent’s daughter was using her computer for e-mails, company returns etc.
On her return to work on 5th December she was called into HL’s office, he asked how she was and when she asked him the same thing he told her that things were going down the pan and that he would be making her redundant. She told HL that she felt victimized but there was no room for discussion. He told her she could leave that day, there was no need to work her notice period. There was no criteria gone through or anything in writing. At 5.15pm she was again called to the office and asked to sign the RP50. The date on it was incorrect and she again protested that other people were doing her job. A meeting was arranged for the 23rd December with CL and HL. An amended RP50 was produced with a waiver document. She was told that the waiver document was part of her redundancy and that she needed to sign it. She telephoned her husband who advised her not to sign the waiver document but she did sign the RP50 and received a redundancy payment of €7800.00
The determination of the Tribunal was as follows:-
Having considered the evidence the Tribunal is not satisfied that the respondent acted fairly and reasonably when addressing the need to reduce the number of employees, or indeed if there was a genuine redundancy at all. Where an employer is making an employee’s position redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.
The Tribunal does not accept that the Respondent acted fairly and reasonably in this case for the following reasons:
- The claimant returned from maternity leave on 5th December 2011, her work had been subsumed by other personnel and HL advised her of his decision to make her position redundant.
- He did not consider the claimant for any other position in the firm and confirmed that the claimant had longer service than the girl who worked at reception.
- At a meeting, on the claimants final day of work (23rd December 2011) HL was advised by the claimant that the situation was “all wrong” and she refused to sign a waiver he presented to her.
- The claimant was told of her redundancy on the day of her return from maternity and no previous engagement with her took place.
- No selection criteria was discussed with her.
The Tribunal finds that the claimant was unfairly selected for redundancy and is satisfied that the respondent has contravened Section 6 (3) of the Unfair Dismissals Act 1977 which states:
‘Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—
(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or
(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,
then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.’
Employers must act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. Indeed Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides that the reasonableness of the employer’s conduct is now an essential factor to be considered in the context of all dismissals. Section 5 , inter alia, stipulates that:
“…..in determining if a dismissal is an unfair dismissal, regard may be had……to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”
The selection criteria, which should be impersonal and objective, were not discussed with the claimant and neither was there any meaningful discussion on alternative positions in the company. She was just told that her position was “gone”.
Accordingly the Tribunal determines the claimant was unfairly dismissed (by virtue of being unfairly selected for redundancy) under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal further determines that compensation is the most appropriate remedy and awards the claimant €25,000. This is in addition to the amount of €7800.00 which she has already been paid under The Redundancy Payments Acts 1967 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)