EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Kathleen Goold - claimant UD1031/2011
Against
Cashel Heritage and Development Trust Company Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard the substantive issue in this claim at Thurles on 2nd December 2013
Representation:
Claimant: Cian O'Carroll, Solicitors, Friar Street, Cashel, Co Tipperary
Respondent: Ms. Mary O’Dwyer BL instructed by Donal T Ryan, Solicitors, 89-90 Main Street, Cashel, Co
Tipperary
This determination is to be read in conjunction with the determination on the preliminary issue.
Substantive Issue:
The claimant was employed on a community employment scheme (the scheme) from 2000. Apart from working for the initial three months at another location she spent the remainder of the ten years working at the front desk reception of a heritage and tourist centre. She worked 19.5 hours per week and enjoyed the duties associated with the role. It is the objective of the scheme that participants will progress to full-time employment or return to education. The sponsor of the scheme is an incorporated company and issues contracts of employment to the participants/employees on a yearly basis. The participants get work experience on the scheme and training if required.
The scheme operates on a yearly basis and participants are employed from October to October. FÁS funds the scheme and decides on whether an applicant is eligible for the scheme. To become a participant in a scheme a person must have been unemployed for a period of at least 52 weeks. The time allowable on s scheme depends on the age bracket of the participant and whether or not the person is in receipt of disability benefit. In the claimant’s case she was eligible for seven years on the scheme (six years because of her age and a further year because she had disability entitlement. In addition, a 10% retention allowance applies, which meant that a sponsor could retain 10%, of the total number of participants on a scheme, from among those who had exceeded the eligibility criteria. The application of the 10% retention option is discretionary and is usually applied to participants with special circumstances or key skills.A list of employees on the scheme as of 27 February 2010 was opened to the Tribunal.
The claimant’s eligibility came to an end around the end of 2007. The respondent’s position was that there had been a high degree of flexibility regarding the 10% retention option but this changed around the end of 2009 when the unemployment figures increased and the newly unemployed were unable to access the schemes as the long-term unemployed were being retained. As a result FÁS instructed that participants should only be retained for one extra year under the the 10% retention option.As a result of this instruction a large number of people exited the schemes in April 2010.
The FÁS instruction came into effect in November 2009. informed the respondent’s scheme supervisor on 27 February 2010 and together they considered the list of participants whose eligibility had expired and considered whether they could be retained.
As the respondent employed 15 participants on the scheme, this allowed for the retention of 1.5 people for one year or two for .75 of the year. The sponsor decides who will be retained. The supervisor opted to retain two participants and selected the two who were to be retained. A list of the participants on the scheme at this time was open to the Tribunal. Five of the participants had exceeded the eligibility criteria. The supervisor selected Participant B and Participant C for retention. Participant A was retiring. Participant B would be 55 years old in a few months and this would bring her into a higher age bracket, thus entitling her to further time on the scheme and instead of breaking her contract the supervisor decided to continue her “straight through”. As regards the other other three, Participant C was 62 years old and was 133 weeks over the eligibility threshold, the second, Participant D (the supervisor’s secretary) was 44 years old and 163 weeks over the threshold and Participant E, the claimant, was 62 years old and 120weeks over the threshold. Of the latter three, the supervisor selected Participant C, who was receiving treatment at that time for a terminal illness and worked 19 hours when possible and was retained as a special case. The supervisor decided to retain her as she woul not be be able to secure a position elsewhere.
The sponsor makes oral representation to FÁS in respect of the participant(s) she wishes to retain on the scheme. In previous years when she made applications for the retention of the claimant, she made the case on the basis of her separation, the fact she had surgery and on another occasion on the fact that she was doing a third level course and so could not get a job. These representations are made orally to the Community Development Officer and are not noted in the participant’s file because they are sensitive matters.
Following from the meeting with the Community Development Officer on 27 February 2010, the supervisor met with the participants of the scheme as quickly as possible to inform those who were not being retained that their employment was terminating. Her evidence was that she met with the claimant as part of the process and explained the instruction from FÁS and the fact that the claimant was 120 weeks over the eligibility threshold. She did not tell her that Participants B & C were being retained and understood that the claimanat was aware of this. It was further the supervisor’s position that the claimant was “very satisfied and very grateful” for having participated in the scheme as indicated by her in the final review document completed around the time of her dismissal.
It was the claimant’s evidence that the first she heard about her employment terminating on 30 April 2010, was when the supervisor told her on 9 April 2010 in public at the front desk, in the presence of other participants. This was only some three weeks before the termination of her employment. She was shocked. When she asked why this was so, the supervisor told her that FÁS had given an instruction that older people be removed from the schemes to facilitate younger people who wanted to avail of the schemes. The claimant later found out that other staff whose employment was ending had already been informed of the situation.
The claimant was upset and met with the supervisor in the office to enquire if a concession could be made for her. When she received a negative response, the claimant considered it to be the case that concessions were not being made. She did not receive a letter of dismissal. It was the claimant’s case that the supervisor had previously said to her that she would continue in her position until she reached the age of 65. This was refuted by the supervisor who said it was not plausible that she would have said this in circumstances where the scheme and number of participants on it are subject to funding from FÁS on an annual basis.
The claimant’s position was that she accepted the termination of her employment as presented to her until sometime following her dismissal she observed Participants B & C entering the heritage centre dressed in their uniforms. They subsequently confirmed to her that they had ben given special concessions. Participant B told the claimant that representations were made on her behalf by a politician. The claimant wondered why a concession could not be made for her, as despite suffering a number of illnesses the claimant had not missed a day of work in ten years. The claimant was private about her illness and believed her health condition may not have been taken into account by the supervisor when deciding which participants should be kept on.
The claimant was unaware throughout her employment of the 10% retention application process. On one occasion her employment was to come to an end and she made representations to the FÁS office and was subsequently reinstated; that was the only time she had previously applied to be retained. The claimant was adamant that this was the only representations she made and that this was the only concession given to her. The supervisor never mentioned anything to her in relation to a 10% retention option when when she signed the contract each year.
The claimant is not eligible for a contributory pension but Participant C would be eligible. The supervisor’s evidence was that she does not take the financial situation of participants or competing illnesses into account when deciding which participants to retain but does take the prospect of finding future employment is a relevant factor.
Determination
The respondent’s evidence was that the operation of the 10% retention option was discretionary based on such criteria as ‘the special circumstances’ and ‘key skills’ of the participant.
The exercise of a discretion by a publicly funded body or employer is not unfettered and must be exercised in a reasonable way, such that those who may be affected by or who may benefit from its exercise know the grounds/criteria on which they might be affected so as to enable them to make a case so that the discretion might be exercised in their favour.
The Tribunal is satisfied that the discretion vested in the respondent was not exercised in an open, transparent and reasonable way. While aware that participants may be granted the concession of further years on the scheme and while she actively sought such a concession herself the Tribunal accepts that the claimant was unaware not only of how the 10% retention option operated but of its existence. From the documentation produced and as set out in the body of the evidence above it is clear that a number of participants, and not just the claimant, had the discretion exercised in their favour on a number of occasions. As is clear from the entire evidence adduced by the claimant, she had a case to make, but not knowing about the option and the criteria for its exercise, she was deprived of that opportunity. Whilst citing the FÁS instruction to the claimant, that participants only be retained for one extra year under the retention option, as the reason for her dismissal, the respondent none the less exercised its discretion in favour of Participant C, ignoring that same rule. The Tribunal award the claimant the sum of €10,000 compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)