CORRECTING ORDER
EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Portdaven Limited T/A Polsmak UD1362/2012
-appellant
against the recommendation of the Rights Commissioner in the case of:
Alicija Franckevic -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Ms A. Gaule
Mr J. Flannery
heard this appeal at Dublin on 28th November 2013
Representation:
_______________
Appellant: Ms Elizaveta Donnery, Donnery Tierney, Solicitors,
57 Clontarf Road, Clontarf, Dublin 3
Respondent: Richard Grogan & Associates, Solicitors, 16 & 17 College Green, Dublin 2
Determination
This order corrects the original Order dated the 28th of February 2014 and should be read in conjunction with that Order. The name of the respondent should be Alicija Franckevic and not Alicija Franchevic as stated on the original order.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)
EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Portdaven Limited T/A Polsmak, Unit 10b, Butterly UD1362/2012
Business Park, Artane, Dublin 5 -appellant
against the recommendation of the Rights Commissioner in the case of:
Alicija Franchevic, 14 The Park, Hillbrook Lawns, Tallaght, Dublin 24 -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Ms A. Gaule
Mr J. Flannery
heard this appeal at Dublin on 28th November 2013
Representation:
_______________
Appellant: Ms Elizaveta Donnery, Donnery Tierney, Solicitors,
57 Clontarf Road, Clontarf, Dublin 3
Respondent: Richard Grogan & Associates, Solicitors, 16 & 17 College Green, Dublin 2
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Decision ref: r-121978-ud-11 under the Unfair Dismissals Acts, 1977 to 2007. The respondent’s representative maintains that she was selected for redundancy as she was pregnant; the appellant denies all knowledge that the employee was pregnant when she was selected for redundancy. Hereinafter the appellant shall be known as the employer and the respondent the employee.
Appellant’s (employer’s) Case
The employer provided evidence of the financial state of the company. The Profit and Loss accounts for the employer were submitted to the Tribunal. The employer consisted of three shops, one wholesale outlet and two leased out shops. The only financial exposure for the leased out shops was rent; these were closed. Due to the serious decline in business and all possible cost saving measures being implemented the employer decided to close one of the three shops.
Of the three remaining shops it was decided to close shop C, as two direct competitors had located on the same street and footfall had dramatically decreased. This necessitated making 3 positions redundant. The employer’s policy is to have a pool of staff for the 3 shops; any staff member can be asked to work in any of the three shops. The staff were rotated regularly to ensure adequate experience and competence to work in all three shops. At the interview stage of employment all staff were made aware of the rotation policy. The contract of employment does not contain this policy.
As a result of this policy all sales assistants were considered for redundancy, not just the staff in shop C that was closing. LIFO was used as the selection criteria. Of the three redundancies necessary, one was the butcher as it was a stand-alone position, one person resigned and this employee was selected for the third redundancy based on LIFO. The employee was given notice of her redundancy by letter in March 2012. The selection criteria was not discussed with the employee before her redundancy but she was aware that shop C was closing.
The employer was not aware that the employee was pregnant until after she was selected for redundancy and the notice of redundancy had issued.
The employer did not present any evidence to the Tribunal of start dates for the remaining staff not selected for redundancy based on LIFO.
Further detailed evidence was presented on the staff rotation policy and rosters were provided for a 10 week period. The employee requested that she was temporarily based in Shop G for commuting reasons. The employer facilitated this request. The employee also requested Wednesday as her day off and to continue to be based in shop G while she completed a course of study. Again the employer facilitated this request as it was of a temporary nature. At all times the employee could be moved to work in a different shop but temporarily the employer facilitated her by rostering her in shop G. Shop C closed in March 2012 and shop G closed in August 2012.
Respondent’s (employee’s) Case
The employee gave evidence through a translator. The employee worked as a sales assistant in shop G. Throughout the full course of her employment the employee worked a total of eight times in shop C; this was only to cover annual leave. The employee never requested to be based in shop G for commuting reasons and she was not undertaking any course of study; shop G was always her normal place of work. Not all of the staff moved between the shops.
The selection criteria or the possibility that the employee’s position was at risk for redundancy was never discussed with her.
The employee told the employer she was pregnant only after she received the letter notifying her that her position was being made redundant.
The employee gave evidence of her loss and her attempts to mitigate her loss.
Determination
The employer used the ‘last in first out’ policy in selecting the employee for redundancy. The employer failed to provide the Tribunal with any evidence of the start dates for the employees not selected for redundancy and therefore failed to prove that the employee’s selection was fair. The Tribunal note that if the employee had not been selected for redundancy in March 2012 her position in shop G would have become redundant in August 2012 when it closed.
The Tribunal varies the Rights Commissioner Decision ref: r-121978-ud-11 under the Unfair Dismissals Acts, 1977 to 2007 and awards the employee €4,000.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)