UD82/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                            CASE NO.

ATA Security Limited – appellant                                                                  UD82/2013

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

Brian Herrieven – respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey BL

Members:     Mr. F. Cunneen

      Mr. C. Ryan

heard this appeal at Dublin on 10^th February 2014

                                          and 9^th June 2014

Representation:

Appellant(s): Ms. N. McGowan BL instructed by:  

Dave Byrne, ATA Security Limited, Unit 4, Finglas Business Centre, Jamestown Road, Dublin 11              (on 10^th February 2014)

and

                        Ms. Hilary O Connor, Maurice Leahy Wade & Co. Solicitors, Archway House, The Plaza,

                        Swords, Co. Dublin    (on 9 June 2014)

Respondent(s): Mr. T. Lowey BL instructed by:

   Patrick F. O’Reilly & Co., Solicitors, 9-10, South Great Georges Street, Dublin 2

This case came before the Tribunal by way of an appeal by the (employer) the appellant against the Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-122338-ud-11 dated 17 October 2012.

The determination of the Tribunal was as follows:-

Background:

The appellant (employer) is involved in the installation and service of CCTV, Access Control, Fire and Intruder alarms for commercial, industrial and Local Authority sites primarily in the Dublin region. The respondent (employee) was employed as the Installations, Service and Stock Manager from the 14^th November 2005.   His employment was terminated on the 12^th March 2012.

Appellant’s Case:

The appellant’s (employer’s) Accountant SF gave evidence. He stated that the company’s business declined from 2008 due to poor trading. Redundancies took place in 2011 and other employees left and were not replaced. A further review of the company was made and it was identified that a cut in salaries must be implemented. It was also identified that two posts would be made redundant – the respondent and an employee in in the accounts section. The witness produced details of company accounts.

On cross-examination he explained that the cost of the rent of the premises in previous years and that the landlords of the premises were the Directors of the company. He had no role in the redundancy process but had recommended cost savings for the company.

The founding Director (PF) gave evidence. He explained that a downturn occurred in the commercial side of the business after the decline in the economy. The company had to rely on the residential side. In 2008 installation staff were put on a three day week and then on a week on and week off. Customers halted their maintenance contracts.

PF explained that the respondent’s job was to programme systems and to purchase components. As business declined new components were not required. In turn there was less work for the respondent to carry out.

In 2010 a new Director (DB) was appointed. DB who was already in the company, had a background in the security business and assisted the witness who was suffering from ill health. DB’s salary was increased when he was appointed a Director. DB answered to the witness (PF) directly.

PF was unaware of any issues between the respondent and DB, the respondent had never approached him with any problems.

On the 13^th February 2012 PF met the respondent to discuss his position. DB also attended and opened the meeting. The respondent was aware of the financial situation of the company. The respondent was very unhappy at the prospect of being made redundant and the meeting became tense. The respondent said that if he went others would go too. PF asked DB to close the meeting. PF was concerned and sensed that the respondent may do something with data on the computer database. PF told the respondent that the company could not afford to retain him. The company looked for alternative employment for the respondent but there was none.

In cross examination he stated that he never saw the respondent’s CV. He did not recall the respondent’s CV being sent to the appellant company. He knew that the respondent had previously worked with an alarm company. When put to him that the respondent could have done the job that AD had done he replied that AD was familiar with the equipment as he had worked with the respondent previously. Practical application was very different in reality. The last thing he wanted to do was to let anyone go. He had no problem with the respondent’s work. The respondent was asked to attend for interview for a position in installations and service on 6 November 2012 but he declined to attend. CCTV systems have different criteria.  

The respondent did not undertake work on installations or if he did it was possibly on one or two installations. If the respondent were to undertake a job in installations he would need training and the company did not have time for training. Employees were on short time prior to the respondent’s redundancy.  

In re-examination he stated in 2011 he became aware of difficulties in the company accounts. If the company hired someone with knowledge of alarm systems it would take six months to train and if he hired someone who did not have any knowledge of alarm systems it took up to two years. His son who worked in the company left.   AD worked with him for about six years and he trusted him. He asked AD to help him to turn the company around. That was how he became involved. He considered making DB redundant but the respondent would not be able to do DB’s job.

In answer to questions from the Tribunal he stated that he tried to be fair and give employment when he could. He was concerned on the day that the respondent was made redundant. The PC had a lot of technical information.  

The company secretary since 2009 LC told the Tribunal that prior to 2009 she was the accounts system administrator. In late 2008 the appellant company was not doing well. Employees were on a three day week.   She had to undertake numerous cost saving measures to reduce costs, including changing the energy supplier, telephone company, discontinue providing water and canteen refreshments for employees. The owners of the appellant building gave a two year stay on the rent in March 2013. Engineers had a tracking device and she discontinued this. A deduction of €10.00 was made from engineers’ wages to pay for diesel.  

The respondent did not work on site and he did not undertake work outside of the office. She sent an e mail to engineers on the 12 October 2011 advising them that DB (Director) had not had a chance to meet with all engineers since he started with the company and this meeting was scheduled for the 19^th October 2011. She did not attend the meeting on the 19 October 2011 as this was an introductory meeting.

She had done all she could do to reduce the company costs but this was not good enough. It was a very small company and two positions were identified for redundancy one being the respondent’s. She was responsible for the sales roster and the sales team now had to order materials directly from the supplier. An installation engineer left on the 27 January 2012 and he gave a months’ notice.

When the respondent was given his notice of redundancy the company was not prepared to make a replacement at the time. The respondent’s role was not advertised. In November 2012 a vacancy arose in installation as LL left.

The appellant company reviewed the Rights Commissioner recommendation and offered the respondent the opportunity to talk to them. A number of employees left the appellant company during 2008 to 2014 or were made redundant. After the respondent was made redundant she met with him and his trade union representative. The respondent was not happy that he was made redundant and it was explained to him that it was the position that was made redundant.

In cross examination when put to her that there was no communication with the respondent regarding his impending redundancy she replied that it was not in writing but everyone knew that the company was in dire straits. If sales were not made there was no work and it was up to employees to keep the work coming in to the company. There was no alternative for the respondent at the time. She agreed that had the respondent been told on the 7 February 2012 about the redundancy he could have prepared a response but she did not know what could have been done differently. The decision was made prior to telling the respondent.  

Respondent’s Case

The respondent outlined in detail to the Tribunal his qualifications and work experience prior to taking up employment with the appellant company in early 2005. He was installations, service and stock control manager. Approximately 60% of the respondent’s business was domestic.  

DB’s (Director) role was as a sales co-ordinator and his role was to get work in. One of the most regular tasks he undertook was to change security codes on alarms. DB had no technical experience, he had previous experience in manned guarding and he had no previous knowledge of electrics wiring and alarms.  A problem arose early on when systems were under-priced and the respondent lost money. He tried to highlight this matter.  

An e mail was sent to engineers on the 12 October 2011 regarding a meeting that was to take place on the 19 October 2011 and he was informed that he was not required at the meeting. He was responsible for these engineers.  It was obvious to the attendees at the meeting that he should have been there and there was no reason why he should have been excluded. In 2011 due to differences with DB he was not happy to leave the office. He delegated tasks to services engineers and if he left the office he did not have confidence in DB. Two safe pass cards were issued to employees. If employees were on a building site they must have a safe pass card. He was not considered for another identity card.  

He ceased sharing an office with LC when she became a company secretary in 2010. He never thought that his position was in real danger.

He was invited to attend a meeting by memo dated 7 February 2012 from LC and DF on the 13 February 2012. He was informed that the purpose of this meeting was to review the company’s organisational structure.   He was quite intimidated by a meeting he attended on the 13 February 2012 with DB, PF and LC who were directors of the company. LC pushed a book of documents in front of him and told him that he needed him to sign the documents so that he would get his redundancy. He did not agree to this and he did not sign any documents. He then asked could he work his notice and this was refused. He asked the appellant company to contact his union representative. PF told him no that he could contact him. He was disgusted that he was denied natural justice. There was no discussion about alternatives and the company had no interest in discussing alternatives. The respondent felt that he was ambushed. There was no selection criteria presented to him. He did not recollect that he was offered the right of appeal. He was escorted from the building and he was followed by PF who supervised him clearing his desk.    

Subsequently he made contact with his union representative after he was made redundant.   After the Rights Commissioner hearing he received a reply from the company that there was a vacancy for an installation engineer. He was asked if he wanted to apply and he replied that he would be interested. He asked the company to address the Rights Commissioner recommendation as it was outstanding.      

He made a complaint to PF regarding bullying and side tracking but he was told not to communicate with PF at a meeting in October 2011. PF was a hand off person. He took advice and he was told to avoid confrontation.  

After 2012 he signed on with a recruitment agency but he has not succeeded in obtaining alternative employment. He undertook a six month start your own business course. His hobby is genealogy and family history and in September 2013 he commenced studying and this is ongoing. Most of the jobs he applied for were in technical support and customer service.

In cross examination he stated that he believed his CV was on file in the appellant company. He had access to a site in North Dublin and had clearance for this site. He was supervising installation of CCTV between June 2007 to June 2008. DB came in to replace an employee who had left and he was introduced as a sales co-ordinator in 2011. DB was announced as Director of the appellant company in July 2011. He agreed that between 2008 to 2012 employees were reduced from twenty to seven. The new installations level of work declined. He had no reason to believe that the company would close down. He was paid his statutory redundancy belatedly. He undertook the technical aspects of an installation engineer’s job.

Determination:

There were certain deficiencies in the manner in which the redundancy was implemented and the appellant company did not adhere to fair procedures. Notwithstanding that there was a genuine redundancy situation and the respondent would have been very well aware of the situation in this small company. Bearing in mind the sum already advanced to the respondent in statutory redundancy the Tribunal awards compensation of €5,000.00 therefore varying the determination of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)