UD1718/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                              CASE NO.

Anthony O'Rourke                                                                                  UD1718/2012                                                                                                                                                                                             

against

Valcroft Limited

t/a Mr Binman

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms P.  Clancy

Members:     Mr. W.  O'Carroll

                     Ms H.  Kelleher

heard this claim at Limerick on 30th July, 25th September 2014 and 27 January 2015

Representation:

Claimant:        Mr. Glenn Cooper, Dundon Callanan, Solicitors,

                        17 The Crescent, Limerick

Respondent:     Ms Cliona Kimber BL instructed by

                         Harrison O'Dowd, Solicitors, Estuary House, Henry Street, Limerick

Respondent’s Case

The General Manager of the respondent company gave evidence that the respondent company purchased the waste/refuse business in April 2012. The purchase also included another rural refuse business both of which were part of five company holdings which had been placed in examinership and subsequently were put into receivership. While the businesses had been successful and profitable in the years of the economic boom, by 2011 they had gone into receivership.

Following the purchase in April 2012 the respondent company undertook a complete review of the organisation. As part of this review the management team met on 25 May 2012 to devise a future strategy.   At this point the company was losing a weekly six figure sum of money. A ten point business plan was devised which was absolutely necessary to deliver upon to ensure the viability of the business. All employees were kept informed throughout the restructuring process. The transport department was completely restructured resulting in the functions operating from two separate sites. This was necessary as the company had to significantly reduce tonnage at the (L) facility where the claimant was employed and to resolve legacy issues which existed prior to the acquisition of the business by the respondent. A number of sections of the transport department remained at the (L) site.

The outcome of the restructuring process resulted in a total of 69 employees including members of management being made redundant through a combination of voluntary and compulsory redundancies. The claimant had been employed since April 2004, initially as a Health & Safety and stores manager and was subsequently promoted to the position of garage manager in 2007. Following the restructuring process the claimant’s position as garage manager no longer existed. A new position of transport assistant was created and the claimant was invited to apply for this position. This position carried a greater responsibility than that of garage manager and also a higher salary. The Tribunal heard evidence that if the claimant did not want to apply for the newly created position he would have been accommodated in some other alternative position within the company. If he chose to accept this and the alternative position carried a reduced salary than that enjoyed by the claimant in his now redundant position as garage manager the company would have compensated him by means of a once off payment. In this regard the company had used this process in relation to other employees following the restructuring process.

Ultimately the claimant, who was absent on paid sick leave for prolonged periods from January 2012 to September 2012 did not apply for the newly created transport assistant position. The Tribunal heard evidence that throughout this period the claimant was kept informed of the restructuring process and minutes from meetings attended by the claimant in June, August, and September 2012 were opened to the Tribunal. The Tribunal heard evidence that the claimant adopted an aggressive tone at the meeting of 9 September 2012 and subsequently only engaged with the company through his legal representative. He was ultimately made redundant and paid his redundancy, notice and holiday entitlements.

GF (the abovementioned general manager) told the Tribunal that, in addition to the sixty-nine redundancies already mentioned, a further sixteen employees left such that there was an overall “turnover” of eighty-five.

In cross-examination it was put to GF that the claimant had been under great stress as garage manager such that the respondent had asked him to take leave. GF replied that all employees’ jobs were at risk in a receivership. The claimant worked a few days in March 2012 but was out until September. GF had wanted to turn the respondent around to a profit.

GF was asked to show the respondent’s written future plan from that time to the Tribunal but he only offered to get it as he did not have it to hand for the Tribunal. The respondent’s representative said that the respondent did not want to provide information that was commercially sensitive especially as there was ongoing litigation between the respondent and the former owners of the business for whom the claimant’s solicitors were acting. The claimant’s representative said that he only wanted to know about the claimant. The respondent’s representative said that the respondent had nothing to hide and that GF was “very open”.

It was put to GF that there had been no consultation with the claimant before his redundancy. The reply was that the claimant had been out sick on certified leave due to stress. The new structure had been decided on sometime in June. GF knew then that the claimant’s post would be redundant. Ultimately, the claimant went to a meeting, did not like the new structure and “stormed out” without discussing it thereby not engaging with the respondent. The claimant did not apply for a new role with the respondent and was ultimately made redundant.

GF was asked if he should not have deferred the claimant’s redundancy a few days rather than making the claimant redundant on his return from sick leave. There was discussion as to whether certain correspondence had crossed in the post. GF could not recall who had made the claimant redundant but acknowledged that it could have been he. Asked if he should not have consulted with the claimant, he replied that the claimant had not been there and that he “would have got egg on (his) face if news had leaked”.

Asked if the claimant could not have been given more time, GF replied that the respondent would not have quibbled over a deadline being broken by a couple of hours but said that the respondent was a small company and not a U.S. multinational. GF did not accept the contention that the claimant “had been a thorn in (his) side” and stated that he “would not like to defend wrongful selection if (the claimant) had not got” a job on offer from the respondent. The problem in GF’s opinion was that the claimant did not even apply. GF told the Tribunal that the claimant was only there for less than a week in all GF’s time with the respondent. The word “stress” was used. GF said that he had no “relationship with (the claimant) because he was not there”. Other employees might not have got particular roles with the respondent but they still worked for the respondent. GF was not aware of anyone else being out so long. This did delay the respondent. GF put someone into garage maintenance while the claimant was out sick.

A meeting was planned because the claimant was coming back. The respondent did not have the custom of taking disciplinary action over a one-week absence. The respondent would not send someone to a doctor before a second week of absence. The respondent had written to all employees in May about voluntary redundancy. GF did not believe the claimant had been interested. GF was not aware of anything specific that had changed the claimant. There had been “no heat” in the meeting that the claimant had attended. GF had wanted to meet him.

Questioned by the Tribunal as to whether the claimant could have felt safely employed at that meeting, GF replied that the claimant had been out sick and that GF had not flagged anything or gone into the full details. It was left for the Tribunal to consider if the claimant’s lengthy absence was a sufficient reason for him not to have more advance notice of his impending redundancy.

When the Tribunal inquired as to the claimant’s post-redundancy loss it was argued that substantial compensation was sought from the Tribunal notwithstanding that he had been in receipt of disability payments and unavailable for work for part of his post-termination time. He had succeeded in gaining some work but his representative submitted that he had an ongoing loss into the future. The respondent submitted that the claimant could not be entitled to seek unfair dismissal compensation for time while on disability payments.  The Tribunal was asked to agree this and did so.

The contemporary human resource and health and safety manager outlined his involvement in this case with particular emphasis on events in September 2012. This witness accepted that the claimant was not aware of the company’s restructuring plan prior to a meeting he attended on early that month.  At that meeting the claimant opted not to positively participate in the discussion and had difficulties recognising the status of the transport manager. At that encounter the claimant was informed of and given provisional notice that his position within the respondent was to be made redundant. Subsequent to that meeting this witness wrote to the claimant dated 13 September 2012 which again gave him notice but also inviting him to apply for a position of transport assistant.

Almost at the same time the claimant had been instructing his solicitor on events and in that context the witness received a letter from that solicitor querying the claimant’s relationship with the company. In the event the respondent had not by the job deadline received an application from the claimant and consequently this witness wrote to him again on 19 September confirming he was facing dismissal by way of redundancy. The claimant did not appeal that decision.

A subpoenaed official from the department of Social Protection submitted certain social welfare payments relating to the claimant over a specific period. 

Claimant’s Case

On the day he was due back to work in September 2012 the claimant was called to a meeting.  He told the Tribunal that he had no notice of the nature and content of that meeting and was shocked at its contents.  While he questioned some of the announcements the claimant nevertheless felt “trapped” and did not really know how to respond to what he was hearing. He therefore left the meeting room and then relayed his concerns to his solicitor.

In accepting he did not apply for the new positions the claimant justified this on the grounds he did not have the full details of those jobs. He also felt it unnecessary to apply as he was told his job was gone. By 17 September he had concluded the respondent had decided to terminate his employment.

Determination 

Having heard and considered the adduced evidence the Tribunal does not agree with the claimant’s contention that the respondent targeted him for redundancy. It does accept, however, that a genuine redundancy situation did exist within the respondent and that the claimant’s position formed part of that redundancy scenario.  The respondent’s management of this case, particularly its efforts to engage the claimant in early September when he had just returned to work, was somewhat heavy handed    

That flaw was outweighed by the claimant’s approach, behaviour, and premature reaction to the company’s restructuring plan.  The Tribunal notes he neither applied for possible alternative positions nor appealed the redundancy decision.

The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)