EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Peterson Manufacturing Limited
- appellant UD652/2013
against the recommendation of the Rights Commissioner in the case of:
Colm Holland
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr J. Goulding
Mr T. Brady
heard this appeal at Dublin on 10th June 2014
Representation:
Appellant(s) : McGrath McGrane, Solicitors,
Suite 323, The Capel Buildings, Mary's Abbey, Dublin 7
Respondent(s) : In person
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employer appealing the Rights Commissioners recommendation Ref – R-128475-UD-12/JW under the Unfair Dismissals Acts, 1977 to 2007.
Summary of Evidence
The employer company was established in 1991 trading in fabrication and sheet metal work. The main business initially was sheet metal work. In 2012 orders began to drop and the management took the decision to lay off a number of employees. Two major site jobs had ended including where the respondent employee had worked. Around the time the decision was made to make the respondent redundant a job which would take three weeks snagging at one of the sites came up and was offered to him however he turned down that job. The respondent (employee) a site worker was made redundant. The decision and selection to make the employee redundant was made as he was a fabricator and the only work remaining was light sheet metal work. The work did not suit the employee as he worked on heavy steel. The employer did not accept that the employee had previously worked in the factory workshop and did not believe that work was a suitable alternative. One month after the redundancy the employer offered the respondent casual work three days per week this was not accepted. The company no longer carry out site work and hire fitters when required. The witness denied that two other employees who had worked with the respondent employee were kept on as there pay was less than what the respondent was paid. The evidence was that the two employees were light metal workers. The witness explained that an employee recruited after the redundancy of the respondent employee was an intern French student. He added that the respondent was made redundant as he was not experienced in aluminium welding and did not have sufficient experience in the workshop.
The respondent (employee) commenced employment with the appellant in October 2009. He was first hired to carry out light steel work and later moved into a site where heavy steal fabrication work was involved. For a period of two and a half years he worked between the site and the workshop. His role on site was foreman and he was the only coded welder employed in the company. In the lead up to his dismissal by way of redundancy he requested the employer induct him at a site in Maynooth where work was ongoing. The employer informed him that all site work was being stood down and the request was refused. He accepted redundancy on that basis in October 2012. He later learned that employees who had worked with him on site who he had been informed were also being made redundant were kept on by the company. His experience and service was not considered by the employer. He never refused work offered to him at any site or location and denied a claim by the employer that Maynooth did not suit him for commuting reasons.
Determination
The Tribunal is not satisfied that any objective selection process was used by the employer in determining the respondent’s termination of his employment. The Tribunal heard that employees were regularly moved around between sites yet no selection pool was established by the employer. Although a redundancy situation may have existed other employees should have been considered in the process. The appellant (employer) provided no clear evidence to the Tribunal on how the respondent (employee) was selected for redundancy.
The Tribunal therefore vary the decision of the Rights Commissioner and award the respondent (employee) €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007. In making this award the Tribunal have taken into consideration the sum of €4,056.00 award of statutory redundancy received by the claimant. The appeal by the employer fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This _________________to _______
(Sgd.) ________________________
(CHAIRMAN)