EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Noel Clarke -claimant UD244/2013
RP197/2013
MN134/2013
WT25/2013
Against
Crosscare -respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr J. Goulding
Mr J. Flannery
heard this claim at Dublin on 24th February 2014
and 22nd October 2014
Representation:
_______________
Claimant: John Cullen, 14 Killaloe House, Clare Village, Malahide Road, Dublin 17
Respondent: Mr. Tom Mallon B.L. instructed by,
Mason Hayes & Curran Solicitors, South Bank House,
Barrow Street, Dublin 4
The claimant received his Redundancy lump sum payment and Minimum Notice payment therefore those claims are withdrawn. The respondent committed to pay any shortfall in the redundancy lump sum paid.
Summary of Evidence
The respondent is a charitable organisation that provides services to homeless people and people in need in the community. The respondent operates a community café, meals on wheels and a food bank. It is staffed from Community Employment (CE) schemes, volunteers and employees. The respondent operates in partnership with St.A Community Employment scheme; St.A provide the respondent with CE staff and a supervisor for the CE staff. The claimant was the CE staff supervisor paid and employed by St.A, working in the H food centre.
In August 2008 the respondent offered the claimant 15hrs work per week to be paid directly by the respondent; this was to regularise the additional hours he was working on an ad hoc basis. This 15hrs was to be worked in addition to his full-time role as supervisor with St.A. In addition to his role as supervisor in the H food centre the claimant would look after the catering and domestic staff if there was special events and also do some procurement for the service; he essentially fulfilled the catering manager duties. The head chef managed the kitchen and the CE staff worked front of house in the H food centre; there was a very clear division between the kitchen and front of house.
A number of changes occurred in the respondent that led to the claimant’s redundancy;
The respondent only provided homeless services at night and wanted to extend this to a 24 hour service. This change to a 24 hour service required a full-time manager. When it was a limited service the claimant was the supervisor but with the change the manager took over complete responsibility for the service.
The Breakfast club was discontinued. St. Vincent de Paul now provided the breakfast club through the local school.
With the implementation of a full-time manager the management structure was made clearer and formalised. (The manager now did the rostering, procurement, monitored maintenance, collected and lodged cash, breakfast service.)
The respondent temporarily moved from the H food centre to the St. A premises (while H was being refurbished). When the H food centre re-opened it was decided less CE workers were required to operate the café and therefore a CE staff supervisor was no longer required.
These changes combined meant the additional 15 hours work the claimant did for the respondent naturally diminished and was no longer required. The position of CE staff supervisor was also no longer necessary when the H food service re-opened.
On the 7th of August 2012 the senior food services manager and HR met with the claimant to inform him that his role (15hrs) was at risk of redundancy and proposed a further consultation meeting for the 16th of August 2012. The claimant brought a representative to these meetings. A letter dated the 8th of August put this notice in writing. The consultation meeting took place and a further consultation meeting took place on the 13th of September 2012.
The Senior Food Manager disputes asking the claimant to resign due to a conflict between his work for St.A and for the respondent. He disputes telling the claimant that the first meeting on the 7th of August was to discuss menu changes and that HR had to be represented as there were other services to discuss. He did not receive a solicitor’s letter from the claimant.
The HR Manager (CC) advised and helped facilitate the changes within the respondent. The change to the claimant’s work happened gradually so the respondent was aware that his role was diminishing. The first consultation meeting was adjourned as the claimant requested a reply to a solicitors letter the respondent had not yet had sight of. They were also concerned about his mental health due to various threats the claimant made. The second consultation meeting proceeded the same way with various threats being made by the claimant. The respondent was unable to discuss the redundancy situation with the claimant. The claimant did say he wished to remain working for the respondent. Alternatives were explored but as the claimant was currently in a full-time role his availability was limited. There was no position available that would be suitable or similar to the 15hrs additional work he did for the respondent.
A further consultation meeting was held on the 9th of November 2012 and a further meeting was arranged for the 16th of November which the claimant failed to attend. The respondent believed that constructive consultation had ceased at this stage as the claimant’s representative asked the respondent not to have any further contact with the claimant. The search for alternative employment was also limited by being prohibited from contacting the claimant.
By letter dated the 10th of December 2012 the claimant was informed that his position had been selected for redundancy. The claimant did not appeal this decision.
The claimant completed all duties associated with being the catering manager for the respondent officially from 2008; he had been unofficially undertaking these duties before the contract was signed. After being made redundant from his role with the respondent he continued to work in his full-time role as CE supervisor with St.A. The claimant accepts that the extra duties that made up the 15hrs had naturally diminished over the previous year.
The claimant did not engage in the consultation process as he lost trust in the respondent when they failed to engage with his solicitor or representative. He did not attend the meetings for the same reason.
The claimant indicated he had a number of additional witnesses he wished to call to give evidence of facts that are not related to the claim and are not within the Tribunal’s jurisdiction. The Tribunal made it clear that the claimant was perfectly entitled to call any witnesses they required in support of the claim, but the Tribunal clarified that these witnesses would not be permitted to stray into evidence not relevant to this case. The representative on behalf of the claimant indicated he would not therefore call any further witnesses.
Determination
The Tribunal have carefully considered the evidence adduced during the course of this hearing. Evidence was provided by CC setting out the process of engagement and consultation with the claimant in respect of his role being made redundant. This evidence was not challenged by the claimant. Furthermore no contrary evidence was adduced by the claimant to suggest any unfair procedures were adopted in the manner in which they made the claimant redundant.
The claimant, by his own admission accepts that all duties carried out by him with the respondent company were eliminated approximately one year prior to his redundancy. In those circumstances the Tribunal is satisfied that this is a genuine redundancy situation and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
In relation to the redundancy, the claimant has been paid a redundancy lump sum. However based on the fact that the respondent accepts that the claimant was employed from 2001 there may be an additional sum due and owing under the Redundancy Payments Acts, 1967 to 2007.
There was no evidence adduced by the claimant in support of the claim under the Organisation of Working Time Act, 1997. Notwithstanding this, CC gave evidence that all outstanding annual leave entitlements were paid to the claimant. The Tribunal find that the claim under the Organisation of Working Time Act, 1997 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)