EMPLOYMENT APPEALS TRIBUNAL
CASE NO
UD1723/2014
CLAIM(S) OF:
Aisling Neidhard – claimant
Against
Conted Limited T/A Thornton's Restaurant – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O'Grady
Mr. J. Dorney
heard this claim at Dublin on 20th August 2015 and 22nd October 2015
Representation:
_______________
Claimant(s): Mr Jadel Naidoo BL. Instructed by: Mr Eoghan O'Reilly, FH O'Reilly & Company Solicitors, The Red Church, North Circular Road, Phibsboro, Dublin 7
Respondent(s): Ms Siobhán Gaffney BL instructed by: Ms Áine Curran, O'Mara Geraghty McCourt Solicitors, 51 Northumberland Road, Dublin 4
The determination of the Tribunal was as follows:-
Background:
The claimant was initially employed by the respondent company in September 2013 on an eight week contract to cover office administration. The claimant’s employment continued after the expiry of the eight week period. In late January 2014 the claimant informed her employer that she was pregnant. The respondent terminated the claimant’s employment by reason of redundancy on 8th March 2014.
Determination:
The Tribunal has very carefully considered the evidence adduced in the course of this two-day hearing. The claimant herein is claiming that she was unfairly dismissed (through a purported process of redundancy) in March of 2014. The claimant had commenced her employment with the respondent restaurant in September 2013 and whilst she did not have the required 52 weeks’ service she contends that her situation does fall into one of the exclusionary categories set out in section 2 of the 1977 Act wherein the claimant is making the case that the dismissal resulted wholly or mainly from the fact of her pregnancy.
The respondent vehemently denies this suggestion and instead put forward the proposition that a genuine redundancy situation arose in response to the generally trying economic situation and the particular impact such a downturn has on a high-end restaurant such as the respondent’s restaurant.
The Tribunal finds as a matter of fact that the claimant, who interviewed for a permanent position, was hired on a temporary basis in September 2013 but was in fact entitled to consider herself to be an employee of indefinite duration by early 2014. No formal contract of employment was provided as the situation had been an organic one arising out of a genuine appreciation on the respondent’s part that the claimant was a hard-working and able office manager who had proven herself up to the job at hand. Since engaging the claimant the respondent had further interviewed and engaged LL to take up the advertised role of Sales, Marketing/Office Manager. Whilst LL came in after the claimant the Tribunal must accept that the LL filled the required criteria of what the respondent needed going forward.
In this regard the Tribunal accepts that in early 2014 the restaurant was struggling to survive in a difficult market. This topic may not have been the subject of weekly staff meetings nor, within reason, was there any obligation to make the details of low sales known to staff as such an approach creates unnecessary worry and gives rise to low morale and the risk of key resignations. The restaurant was not under any immediate threat of closure so long as the situation was prudently managed and with the recognition that difficult decisions were still to be made.
The Tribunal notes that a number of cost saving measures were looked into and introduced. So for example beverage purchases were limited to replacements and not building up a wine cellar, Mr T. came back to work in the kitchen, the Hotel (landlord) was called upon to give assistance and eventually MT (the co-owner) had to look at letting staff go as a cost saving measure.
MT talked to her two most senior members of staff AW (the head chef in the kitchen) and MP (the restaurant manager) in and around the 12th of February 2014. Both these witnesses confirmed that they had had some prior interaction with MT regarding the financial affairs of the restaurant and had exercised caution in their expenditure as advised by MT. However, they were now also being asked to consider their respective workforce for the purpose of identifying roles which could be made redundant.
MP gave evidence to the effect that for her the selection process narrowed down very quickly to the office staff as her front of house staff are all integral to the smooth running of the restaurant. In her evidence, MP indicated that to her mind the work being carried out by LL, the claimant and herself could quite easily be carried out by two personnel.
At a further meeting held with AW and MT on the 26th of February 2014, MP identified to the co-owner MT that the two office positions could be reduced to one with her intention that she could absorb some of the tasks during less busy periods of the working day.
MT in her evidence says that she made the final decision in deciding which positions would be made redundant and that in weighing experience and the restaurant requirements she determined that of the two office personnel provided she’d have to make the claimant’s role redundant. There can be no doubt that MT knew when making this decision that the claimant was pregnant. There is however, no suggestion or evidence that supports that this fact had any bearing on the decision reached. The experience for which LL had been engaged (sales & marketing) continued to be an express requirement of the respondent, now more than ever.
On balance the Tribunal is not inclined to accept, as has been suggested, that MT made such inappropriate enquiries at the claimant’s initial job interview on her plans to have a family.
The Tribunal does accept that there was an unfortunate bluntness in terms of delivering the message at the beginning of March 2014. It was perhaps these actions which gave rise to the claimant feeling justifiably aggrieved with the manner in which the employment was terminated. The Tribunal does not however accept that the claimant had no inkling that there was a prevailing financial backdrop which had an affect on the ongoing viability of the restaurant.
The Tribunal can pass no comment on the manner of the departure of the chef-de-partie though it is clear the intention to let him go had been made as part of the cost saving exercise being implemented.
Accordingly, the Tribunal does not accept that the dismissal resulted wholly or mainly from the fact of the claimant’s pregnancy and that being the case the Tribunal does not have jurisdiction to determine the substantive matter under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)