EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paschal Slevin -claimant UD213/2013
against
Ammado Internet Services Limited T/A Ammado.Com -respondent
Ammado Internet Services Limited T/A Ammado.Com -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr. R. Murphy
Mr. F. Barry
heard this claim at Dublin on 10th March 2014
Representation:
Claimant: Mr Peter Mc Innes, Mc Innes Dunne Solicitors, Lower Ground floor, 78 Merrion Square, Dublin 2
Respondent: Mr. S. Doherty (Chief Technical Officer) C/O Ammado Internet Services Limited
Background
The respondent company is an IT company. The claimant worked for the respondent as a database administrator.
The claimant contends that the respondent failed to pay his salary on June 25th 2012 and that was the second occasion that the respondent told him that they had run out of funds.
He asked for RP9 lay off on July 9th as a number of other employees had availed of this option and signed on. The company said that he would be re-engaged when they had funds. His salary was then paid without explanation on 27th July. He asked to return to work from 30th July, but was told that he was being kept on RP9 status. He then received an email from the Chief Technical Officer (CTO) on 10th August 2012, informing him that his position was being made redundant.
The company failed to consult him or offer him an alternative role within the organisation. To his knowledge he was the only person who was made redundant.
The respondent contends that the claimant was made redundant in August 2012 on the grounds that the company was having funding problems and were reviewing staff numbers and costs. The respondent identified that they did not require a dedicated database administrative role going forward. Alternative roles within the company were discussed with the claimant but no suitable roles were identified. All monies due to the claimant were paid. The respondent has not hired anyone else to fill the claimant’s role and does not intend to do so in the future.
Respondent’s Case
The Tribunal heard evidence from the Chief Technical Officer who represented the respondent company at the hearing. The CTO explained that he was the claimant’s supervisor. He told the Tribunal that amongst other things the respondent runs an internet website. The claimant’s role was to organise and run a maintenance schedule and to run internal database. The claimant‘s role was significant.
When the claimant commenced in 2007 / 2008 the company was four times larger with circa thirty staff. At some point in time there was forty or fifty staff. Now the company had twenty-one staff.
In the summer of 2012 the company had been looking for an investor. There were two potential investors, one was a German investor and the possibility of this succeeding was 50%. The other possible investor (known as CI) had a 90% possible of succeeding.
On or about 22nd June 2012 the Chief Officer told staff that the company was unlikely to make the payroll. At this time the German investor decided not to invest. The CEO updated staff of this development. The company missed the June salaries.
The CEO was focused on trying to get monies in for salaries and other critical things. The respondent company decided to place staff on lay-off and issue forms RP 9. They left it up to staff to volunteer. The employees nominated two employees to represent them.
Some employees asked for RP 9 forms. They also asked the representative employees for a list of employees who needed monies urgently. The representatives told the company that all of the employees needed 80% of their salaries.
The witness gave evidence as to the employee’s status and the on-going funding situation.
He explained that they tried to save on costs, some examples were that they had discussions whether move their office in the Czech Republic or if the development team in Serbia could try and generate local contracts.
The witness explained that at some point it was decided to make the claimant’s position of database administrator redundant. Regarding moving the claimant to another post in the workplace they could not move him to a development role because knowledge of a computer language and other knowledge was needed.
He asked the accountant to calculate the redundancy amount for the claimant. The company agreed to pay him his contractual notice of 60 days. The claimant’s position has not been replaced. They use automated tasks for the work that the claimant did and these automated task had been developed by the claimant. He gave the claimant a reference.
Claimant’s Case
The Tribunal head evidence from the claimant. He was employed for five years in the respondent company between 2007 and 2012. There were two financial disruptions to the employees pay one was in September or October 2009 to Christmas 2009. The employees were paid in January 2010.
In 2012 the claimant was “offered” lay-off.
The claimant had a conversation with SD some weeks prior to this offer and SD told him that he did not think that he (the claimant) was happy in the company. SD told him that his personality did not fit in and that he should consider looking for another job.
At some point in time the claimant asked to return to work from lay-off and he was told that he was going to be kept on lay-off. He had asked to return to work because he had received a message to say the company had got funds and so he responded by asking when he could return to work.
He had communicated with SD regarding payments/ forms but SD stopped responding. He then had to contact CT to obtain forms/payments.
He did receive a letter to say that his position was being made redundant and this came as a shock to him. He did go to SD and say that he could work in another role but was told that it was a management strategy to bring in someone for a short duration for the role. As far as the claimant was concerned he would not have a problem doing a job he had been doing for twenty years.
He received a letter regarding redundancy but he did not get a letter to actually confirm that his role was redundant. He had to access his redundancy payment from the redundancy payments fund as the company did not pay him the redundancy.
The claimant gave evidence as to his loss.
Determination
The Tribunal carefully considered the evidence adduced. It is accepted that the respondent was faced with a serious funding difficulty that required action to cut costs. However there were serious flaws in the manner in which the claimant was made redundant. The claimant was not called to a meeting to discuss his proposed redundancy and neither was he given the opportunity to either put forward alternative proposals or to demonstrate his ability to perform another role. The Tribunal finds that the claimant was unfairly selected for redundancy and therefore the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. Taking into account the redundancy payment received by the claimant, he is awarded the sum of €10,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)