EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF:
CASE NO.
Peter Matthews, UD116/2013
MN66/2013
against
Irish Aggregates (Munster) Limited
T/A Kilwaughter Chemical Company,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T O' Mahony B.L.
Members: Mr P. Casey
Mr D. McEvoy
heard this claim at Cork on 19th June 2014 and 3rd October 2014
Representation:
Claimant : McCullagh Wall, Solicitors, Rathmore House, Rathmore Lawn,
South Douglas Road, Cork
Respondent : Mr Ken Hegarty, Timothy J. Hegarty & Son, Solicitors, 58 South Mall, Cork
The determination of the Tribunal was as follows:
The claimant withdrew the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Summary of Evidence
The respondent company is involved in the selling and distribution of aggregate stone and paving products throughout the country. The claimant commenced employment with the respondent company in September 1998. He was a yard charge-hand and was also responsible for overseeing as well as being involved in the loading and unloading of trucks which constituted 85% of his role and he was also responsible for ensuring availabilityof stock at all times. He had an in-depth knowledge of the products supplied by the respondent and was responsible for signing off on the loads. The paving business is seasonal and from September on traditionally sales and staff numbers fall.
There was a gradual and significant drop of around €1 million in the respondent’s turnover between 2007 and 2012 and a number of redundancies were created year on year in the autumn of 2007 to 2011. Existing costs and overheads were examined before pay cuts and redundancies were considered.Five percent pay cut(s) was implemented and in an attempt to maintain the workforce shorter working hours were introduced.
The downward trend continued into 2012 and by September further measures had to be implemented to deal with the drop in demand. On 19 September 2012 a memo was issued to all staff, informing them of proposed redundancies in six specified areas which included the yard and selection criteria were identified. The memo set out that any volunteers would be considered, alternative positions would be sought for those at risk and the respondent sought suggestions for alternatives solutions from the employees by 25 September 2012. Employees were further informed that those at risk would be notified and individual meetings set up for them with management.
A meeting was arranged with the claimant for 27 September 2012 as his position had been identified as being potentially at risk of being made redundant. The claimant did not attend the meeting. On the one hand he was not overly concerned as he was of the opinion that the office and administration department were top heavy and more at risk. However, when he learned that his position was at riskhe felt that he would be selected from the yard staff and having a good relationship with GM approached him directly wanting to know his position rather than being left linger on.
In applying the technical skills matrix, which was opened to the Tribunal, the claimant scored two points less than the charge-hand who worked in the bagging yard. He was notified of his redundancy by letter dated 28 September 2012. The claimant did not appeal his dismissal. The claimant had accepted his redundancy until about two weeks later when he visited the respondent’s premises and observed TB, who had been hired after him, driving the forklift and carrying out his role in the yard.
The respondent denied that TB replaced the claimant. TB had been working with the respondent on a JobBridge internship from May 2012. The summer has always been the busier period and in summer of 2012 others, including the claimant, had been looking for extra help and TB was employed on an internship. One of the objectives of an internship under the scheme is to facilitate the intern in learning new skills. During his internship he worked in the office and in the yard when needed. TB was let go in late September on the same day as the claimant. Around six weeks later TB was invited back by the respondent on a casual basis for a few days work. The respondent would phone him in the morning offering him work for the day.
On 8 March 2013 the respondent placed an advertisement for Counter Sales/Yard Support person in a national newspaper. The claimant did not apply for the position because he felt it was his position and he had been unfairly made redundant some five months earlier. TB applied for the position and was successful. His role fluctuates between serving customers and undertaking yard duties. TB’s evidence was that he had no supervisory function in the new position. In cross-examination TB accepted that when his duties involved loading, he believed he was doing the claimant’s job.
Determination
The Tribunal does not accept the claimant’s main contention that he was replaced by TB and that his position was not redundant. It was common case that the respondent’s business was in decline and that downsizing was required at the time of the claimant’s redundancy. Doing occasional work on an ad hoc basis for the respondent, commencing around six weeks after the claimant’s redundancy and involving some yard/loading duties, was not the claimant’s position.
While the new position created in March 2013 contained yard duties as well as counter sales duties, the Tribunal is satisfied that it was not the claimant’s position. The claimant did not apply for the position.
The claimant’s position was made redundant. In its deliberations the Tribunal was cognisant of the seasonal nature of the respondent’s business.
The respondent invoked fair procedures. The claimant did not avail of the opportunity offered by the respondent to engage in consultation prior to its decision on the redundancies, where he could have discussed alternative positions and other alternatives to redundancy
For these reasons the claim under the Unfair Dismissals Act, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)