EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Marie Brody – claimant UD1703/2012
against
Raymond Bradley & Terry Doyle practising under the style and title of Malcomson Law - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly B.L.
Members: Mr M. Noone
Ms. N. Greene
heard this claim at Carlow on 24th January 2014 and 17th June 2014 and 18th June 2014
Representation:
Claimant: Mr. Des Ryan B.L. instructed by Ms Margaret Pilkington, Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Respondent: Ms. Claire Bruton B.L. instructed by the respondent.
Determination:
The Tribunal have carefully considered all of the evidence, the documentation submitted and the legal submissions made.
The claimant states that she was unfairly selected for redundancy. Section 6 of the Act states:
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,
(b) the religious or political opinions of the employee,
(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,
(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,
(e) the race or colour of the employee,
(f) the pregnancy of the employee or matters connected therewith, unless‑
(i) the employee was unable, by reason of the pregnancy or matters connected therewith—
(1) to do adequately the work for which she was employed, or
(11) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and
(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy,
Or
(LI) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.
(3) 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.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
(5) (a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces under section 30 (1) (g) of the Defence Act. 1954 , shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.
(b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces under section 30 (1) (g) of the Defence Act, 1954 , was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof.
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) Where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal.
The Respondent gave evidence that in or around June 2012 an independent consultant was employed to assess the financial efficiency of each department within the respondent’s firm. DR is a recognised expert in the field of assessing the financial efficiency of law firms in Ireland. RB detached himself from that process due to the claimant’s grievance. It was suggested by the applicant that RB in reality was very much involved in the process. Evidence was adduced that DR was informed by RB about the claimant’s grievance and it was suggested that that disclosure tainted DR’s objectivity. It was accepted by RB that he did mention the issue to DR but gave no specific details about the issue to him. DR stated that he was there solely to assess the financial efficiency of each department within the firm and that interparty grievances were irrelevant to that function. DR’s report corroborates that. The report sets out the terms of reference. The body of the report reflects that the terms of reference were adhered to.
During the course of DR’s investigations he met with the claimant and the issue of voluntary redundancy was put on the table. It is unclear whether it was suggested by the claimant or by DR. What is clear is that the claimant stated she would “grab it with both hands.” Following discussion in relation to the redundancy package the claimant changed her mind. It is clear from the evidence that it was the redundancy package and not the redundancy itself that the claimant was unhappy with. In any event DR’s report at paragraph 4.4 states:
“The firm is over staffed in the litigation area with work for one solicitor and the appropriate support staff”
That statement is independent from the claimant’s wishes in relation to the redundancy or the redundancy package.
At that juncture there were only two solicitors in the litigation department, the claimant and a partner. That left the respondent with no option but to select the claimant for redundancy. The Respondent gave evidence that following on from DR’s report it offered the claimant a position in the Dublin office. She declined that offer for her own personal reasons. Furthermore the issue of part time work was addressed in or around June 2012 but the claimant stated that part time work was not an option for her due to her financial situation.
The claimant was not informed at the time of the Redundancy that she had a right of appeal. The claimant is a fully qualified solicitor who has practiced in the area of employment law and knew or ought to have known that an appeal was always an option. Furthermore the contract clearly sets out that she will be afforded the right of appeal should she wish to do so. The claimant stated that at that stage she was “shattered” and “didn’t think to ask about an appeal.” The Tribunal note that prior to being made redundant the claimant had employed both solicitor and counsel both of whom were in a position to advise her in relation to the appeal.
The Tribunal find that the Respondent has satisfied all of its legal obligations in relation to the redundancy process. It informed the claimant of the situation by letters dated the 22nd June 2012 and 4th July, 2012. There were several informative meetings prior to that. The process was fair, independent and objective. All alternative possibilities were exhausted.
In all of the circumstances the claimant’s claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)