EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1557/2014
CLAIM(S) OF:
Martin Gallagher - claimant
against
Neville Hotels T/A Kilkenny River Court Hotel - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Ms S. Kelly
heard this claim at Kilkenny on 3rd June 2015
Representation:
_______________
Claimant(s) : Mr Hubie Byrne BL instructed by Mr. Colm Dunne, Bowler Geraghty & Company, Solicitors, 2 Lower Ormond Quay, Dublin 1
Respondent(s) : In Person (Director of Respondent Company)
Respondent’s Case
The respondent company became owners of the hotel in May 2014. Prior to this date the business had traded as a hotel, and at the time of the transfer transferred to the respondent in May 2014, a general manager, a deputy general manager, two duty managers, a bar manager, and a restaurant manager were employed in the hotel. The claimant was employed as the deputy general manager.
A director and shareholder (DS) of the respondent company told the Tribunal that a decision was made in August 2014 that the role of deputy manager was to be made redundant. The claimant was informed of this decision at a meeting on 21 August 2014 and this was confirmed to him by way of letter dated 25 August 2014. The role was a stand-alone position and DS subsumed the claimant’s role as duty manager as well as having other duties. The claimant was given six weeks’ notice of the termination of his employment and was paid his statutory redundancy entitlement, totalling €15,060.00. There was no other position available to offer to the claimant and DS did not have any discussions with him concerning his redeployment.
In May 2014 when the business transferred to the respondent, DS became aware that the claimant had made a complaint against the general manager. The complaint related to issues which had occurred prior to the transfer of the business. DS conducted an investigation into the complaint. She interviewed the claimant and other employees as part of the investigation. Following the completion of her investigation she made a number of findings, and produced a detailed report, a copy of which was given to the claimant on 30 September 2014.
In her report, a copy of which was opened to the Tribunal DS concluded “….. that the behaviour of both managers was unprofessional at times, both to each other and in front of other staff and would appear to be predominantly attributable to the inability of the both managers to find an effective and productive approach to work together.” The report also concluded that “…. it would appear that the respondent is not in breach of the Company’s ‘Personal Harassment and Bullying Prevention Policy’ ”.
Subsequent to the claimant having been made redundant the general manager and two duty managers left their employment of their own volition. These positions were subsequently advertised and were filled. The claimant did not apply for the positions nor were they offered to him. She accepted that the claimant in his position as deputy manager had carried out the duties of duty managers while working in the hotel. She confirmed that the duty managers who had left of their own volition had less service than the claimant.
Claimant’s Case
The claimant gave evidence that he had worked as deputy manager in the hotel for over 12 years. He was responsible for the day-to-day operations of the hotel, including recruitment, training, wages and functions. In April 2014, prior to the transfer to the respondent he raised a grievance concerning ongoing issues he had with the general manager. Changes had been made to the rosters which resulted in his losing Sunday hours, staff had left and had not been replaced, and he had been asked to take a reduction in pay. When he questioned these issues he was told by the general manager not to question him. He then raised his grievances officially, lodging a formal detailed complaint. A copy of this letter of complaint was opened to the Tribunal.
DS conducted an investigation into his complaints and he was interviewed as part of the investigation process. However on 21 August 2014 he was told by DS that his position was being made redundant and she was taking over his duties. Redeployment was not discussed. He would have been happy to consider redeployment and was well capable of fulfilling other managerial duties in the hotel. He asked for the redundancy matrix and was told there was none as his was a stand-alone position He was not contacted by the respondent in relation to vacancies which became available in the hotel subsequent to his redundancy. The general manager had only been working in the hotel since November 2012. The claimant had a very good working relationship with the previous general manager. The claimant contended that he was made redundant because of his issues with the general manager.
Following the termination of his employment he secured alternative employment of a temporary nature on 9 April 2015. This employment is due to end on 9 July 2015 and he has no certainty of employment beyond that date.
Determination
There was a failure to consult with other members of management prior to making the decision to make the claimant redundant. There was a failure to offer voluntary redundancy, which in light of the subsequent resignations may have had a fruitful outcome. The duty managers ought to have been considered as possible candidates for redundancy in this case. For these reasons and without considering the claimant’s contention as to the real reason for his dismissal, the Tribunal finds the dismissal was unfair. Under section 7(3) of the Unfair Dismissals Acts, 1977 to 2007, financial loss attributable to the dismissal includes any loss or diminution of the rights of employees under then Redundancy Payments Acts, 1967 to 2007. In awarding the claimant compensation under the Unfair Dismissals Acts, 1977 to 2007 and taking cognisance of section 7 (3) of the Acts, the Tribunal awards the claimant the sum of €22,000.00 in addition to the sum of €15,060.00 already paid to him.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)