UD2230/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                  CASE NO.

Branka Ovington        -appellant                                                                  UD2230/2011

against the recommendation of the Rights Commissioner in the case of:

T E Laboratories Ltd                                                  -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Hennessy

                     Mr. J. Dorney

heard this appeal at Carlow on 6th May 2014

Representation:

Appellant:                   Poe Kiely Hogan, Solicitors, 21 Patrick Street, Kilkenny

Respondent:                Ms. Mairead Crosby, IBEC, Confederation House,

84/86 Lower Baggot Street, Dublin 2

This claim came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner’s Recommendation (reference: r-103963-ud-11/JT).

Summary of evidence:

The appellant’s position with the respondent company was selected for redundancy. The company operates a full laboratory that analyses samples and manufactures chemical solutions. The company moved to a purpose built premises in January 2010. It was the company’s case that this change coupled with a change in a number of work practices ultimately led to reduction in the appellant’s role.

The appellant commenced her employment with the company in November 2007. She was appointed to the position of internal customer services person and was primarily based at the front office. It was the appellant’s evidence that she carried out general office duties up to March 2008. During March 2008 Employee M transferred and the appellant carried out his role (which entailed data entry for the laboratory) in conjunction with her own role. The appellant also supported Employee D who held a sales order processing role. The appellant received on-the-job-training from Employee D whenever possible in the sales office.

Subsequently Employee D commenced a period of maternity leave in late October 2008. The appellant found herself carrying out all three roles for a period of ten weeks. As a result of the workload the appellant asked the Sales Director to assist her with some of the work and he carried out some of the more complex orders. The appellant found the chemical processing duties challenging but did not mind the work.  

In early 2009 Employee D’s work was split into two positions and in February 2009 AC was employed in the sales order processing role. She received proper training in the position from the Sales Director. The appellant did not apply for the advertised role as she was already carrying out the duties associated with the role. When AC commenced employment the appellant was asked to revert to her role at reception. The appellant was upset about this but felt she had no alternative. Her duties at reception in the intervening period had reduced and she was left with very basic duties.

The appellant commenced a period of maternity leave in August 2009. There was a dispute between the parties as to when exactly the company was informed of the appellant’s pregnancy. There was also an issue between the parties in relation to a number of warnings issued to the appellant in relation to time-keeping. Ultimately, the appellant was issued with a final warning by the Sales Director but this was revoked on appeal.

During the period of maternity leave the appellant’s duties were distributed among the existing staff and a number of work practices were altered. In addition the company moved premises on 4 January 2010. The new premises had a separate entrance for sample receipt other than the front sales office. The result was a reduction in footfall to the front sales office by more than 75% and due to security doors etc. there was no requirement to have staff maintain the front sales office. The appellant accepted in evidence that the change in premises had an impact on the number of people attending at the front office.

AC was promoted while the appellant was on maternity leave and her vacant position was advertised on the notice board. The appellant returned from maternity leave on 14 July 2010. It was the appellant’s evidence that the Sales Director was cold and distant with her on her return to work and she was told not to talk to the staff in the laboratory. The appellant carried out basic duties but did not have enough work to fill the hours.

The appellant was informed by the Sales Director and personnel from Human Resources on 5 November 2010 that her position was redundant due to a lack of work. There was no alternative position available that could be offered to the appellant. The appellant did not receive prior notification of the redundancy. At this meeting the appellant raised the fact that she had a technical qualification. However, in evidence the Sales Director stated that prior to her employment with the company the appellant had applied for a position in the laboratory but had failed the examination part of the application process. In addition the appellant had the opportunity of working in the sales order processing role but without success. It was the Sales Director’s evidence that he had to cease travelling at times to keep this part of the business operating when the appellant was carrying out this role.

The appellant gave evidence of loss and efforts to mitigate that loss.

Determination:

Having considered the evidence adduced at the hearing the Tribunal finds as follows:-

1. That the appellant commenced work with the respondent in an internal customer service role in the front office.

2. When a support role in the sales office became vacant the respondent offered this to appellant. The appellant appeared to work well in this role with the support of Employee D.

3. However, when Employee D left on maternity leave and the appellant was on her own it became apparent to the respondent that the appellant was struggling with the accounting function and the chemical sales processing function. The appellant, on her own evidence, said she found the job difficult due to the volume of work, the fact that she could not do the accounting and found the chemical sales processing “challenging.” The Sales Director came in off the road to assist in the short term and the respondent following advertisements filled the accounting position and the chemical order processing position in January and February 2009. The appellant did not demur or apply for either position.

4. When the appellant returned from maternity leave the respondent had reorganised due to the fact that they had moved premises and due to the down-turn in its business.   This reorganisation resulted in a reduction in the duties carried out by the appellant in the support role in the sales office.

5. When the respondent informed the appellant that it had retained the other employee because of her qualifications and experience the appellant was made aware of the criteria for her selection of redundancy.

6. The only position available or that could be made available to the appellant required a person who could do chemical order processing.   The respondent by virtue of the appellant’s performance in the role when Employee D left on maternity leave was in a position to decide whether the appellant was suitable for the remaining role or not.

Accordingly, the Tribunal finds that there was a genuine redundancy situation and that the employee retained over the appellant was retained on a need to retain skills basis.   Therefore, the Tribunal finds that the claim under the Unfair Dismissals Acts 1977-2007 fails and the Tribunal overturns the decision of the Rights Commissioner dated 3^rd November 2011 (reference: r-103963-ud-11/JT).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)