EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Alan Brady UD2417/2011
-claimant MN2427/2011
against
The Bohemian Football Club Limited
-respondent
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 O. Madden B.L.
Members: Mr. R. Murphy
Mr. F. Barry
heard this claim at Dublin on 25th July 2014 and 4th November 2014
Representation:
Claimant: Mr. John Smith BL instructed by Cormac O Ceallaigh & Co, Solicitors,
Main Street, Ashford, Co Wicklow
Respondent: Mr. Chris Brien director & Mr. Donal Byrne director
c/o The Bohemian Football Club Limited, Dalymount Park, Phibsboro, Dublin 7
Opening:
The claimant’s gross pay was agreed at €577.80.
The respondent position is that the respondent (which is a football club) was in serious financial difficulty and had not made a profit in the last ten years. They had to effect redundancies and the claimant’s position was made redundant. The claimant was a bar manager and his position has not been replaced.
The claimant’s position is that he does not accept that it was a redundancy situation. If it was a redundancy situation his representative does not accept the “cause and effect”; the post was not gone and there was an animus on the part of a Mr. LK towards the claimant. There was a high level of discord between LK and the claimant. Even if it was a redundancy there was an absence of fairness. No procedures were followed and no consultation took place. They do accept that the club owes a large amount of money.
The claimant’s representative formally withdrew the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Respondent’s case:
The Tribunal heard evidence from a director (CB) of the respondent. The witness explained that he was the financial director in April 2011 and the President of the club from April 2011 to February 2013.
The situation in 2009 was that the budget had been set by the Board of Directors. They had to reduce costs. In the latter part of 2009 any casual labouring staff left the employment of the respondent. The respondent was down to seven employees. They reduced the playing staff budget of 2009 to 2010 by circa 400 or 300 thousand euro. In 2010 they reduced the budget further. They reduced the non-playing staff wages by 10%. In 2009 the respondent made a loss of 1.9 million and in 2010 a loss of 1.5 million. They had a bank debt of 4 million. They discussed termination of the palyers contracts and some players were signed on a 2 year contract of employment. The measures were implemented amicably and done through the FAI and the players unions.
The non-playing staff consisted of one part time and one full time car park employee, one maintenance employee, one admin employee, one grounds man and one employee in “commercial”. So they had 5.5 employees. The claimant was the only full time person in the bar and they employed other casual bar staff on match nights.
The witness was asked if he was involved in the decision to make the claimant’s position redundant and he agreed that he was. He explained that it was decided not to open the bar during the weekdays unless there was a function. They opened the bar on Friday night, Saturday night and Sunday only. It was therefore decided that they did not need a bar manager. They did not ask the claimant to work part-time because two of the directors, (DL and MD) said that they would work in the bar. DL would order the stock and MD would look after the takings.
The witness was asked to clarify further why they did not offer the claimant part-time work and he explained that he did not know but maybe they felt that it would be insulting to offer the claimant casual work. He was asked if it was correct to say that the decision to make the claimant’s position redundant was made at board level and he agreed that was the case. The witness further explained that a bar committee now manage the bar and that it is done on a voluntary basis.
The witness was asked about accounts documents and about minutes of board meeting regarding decision to make redundant and he agreed that he did not have those documents.
The witness was asked why it was decided to issue the claimant with a new contract in 2010 that was a two year fixed term contract and he replied that maybe they should not have done that.
He was asked about the hours of the new casual bar man and he explained the new person (N) worked 13 hours. He explained that the two directors (DL and MD) who took over working in the bar had made the decision to take on the new barman on a casual, part time basis.
It was put to the witness that one of the directors a Mr. LK did not like the claimant at all and that LK had written a letter to the claimant three months prior to the redundancy. It was put to the witness that the letter meant that the claimant “had to buck up or he was out” and the witness agreed.
On the second day of hearing the witness produced what he considered as relevant minutes from board meetings from June 2011 onwards. A meeting of July mentioned the claimant going to a three day week and at a meeting of 16th November CB was to meet with a redacted person re “how best to outsource tasks and reduce staff”. A further meeting of 23rd November mentions the redacted person again stating that the respondent needed an event manger rather than a bar manager. That role of event manger was never filled. Asked who the redacted name was, CB said that it was a person with employment law experience from whom they sought advice.
Asked about a meeting of 1st November (the details of which were produced by the claimants representative) CB said that it was a meeting at which redundancy was discussed that it had gotten out of hand. He didn’t think that the redundancy was ever voted on at a meeting, it was just conversation and a board majority decision. The claimant was never asked if he was interested in the part-time hours, all of the bar committee work on a voluntary basis and the causal worker N receives €12.50 p.h. so the respondent has savings of €30k per year.
Claimant’s case:
The claimant gave evidence of receiving a new two year contract on 1st October 2010. He was a supporter of the club all his life and did everything required, including picking up stock for the bar because nobody would deliver it and working hours long in excess of what he was contracted to do. He worked in the bar trade for over 20years and said that while the club itself was in financial difficulty the bar was not, it was doing well. It made no sense to him that the members bar was closed during the week. There were different groups that used it throughout the week and nothing was ever discussed with him, just a note put on the wall by LK.
He felt LK didn’t like him, he always raised his voice when speaking to him and the claimant felt he was being talked down to. For that reason he kept contact with LK to a minimum. On 2nd September he received a letter from LK expressing his dissatisfaction the claimant’s work performance. The claimant replied, objecting to LKs allegations, saying they were hurtful and belittling and advising of his need to seek legal advice.
On the day of his dismissal (16th December 2011) he got a text around midday from LK asking him to call to the office at 3pm, he popped in around 2.30 but was told come back at 3pm “like I told you” and by 3.10pm he was told “your gone with immediate effect, due to financial constraints”.
The claimant told the Tribunal that he also acted in a security role for the club. He worked in conjunction with the gardai and worked hard on keeping hooligans out of the club. Asked why he felt he was dismissed he said that he felt it had to do with the security side of things. He had a lot of people barred from the club and when new directors were appointed some of their friends were refused entry. LK then stopped him doing security. Asked if he would have done the casual hours now being worked by N, he stated that work was work, he would have taken the casual hours but they were never offered or discussed.
DM former honorary secretary (resigned 8th November 2011) told the Tribunal that he was the bar director and gave the claimant his first and then second 2 year contracts. DM spent several years running pubs and knew how they worked. He told the Tribunal that there was no doubt but that the club was under severe financial pressure, the previous bar manager to the claimant had been paid 10/12k more than him but he provided an analysis to prove that the bar made a profit every year, up to and including 2010. DM stated that he didn’t think there was any rationale for closing the bar 4 nights a week and felt it was the wrong decision, there was no business rationale for it. The claimant was discussed at a board meeting, it appeared they wanted rid of him DM resigned one week later. He told the Tribunal that he had asked many times for proof that the bar was losing money but nobody ever provided that information.
Determination:
The Tribunal have carefully considered the evidence adduced by both parties in this matter. The Tribunal finds the claimant was unfairly dismissed due to the respondent’s failure to offer alternative part-time hours to the claimant which were subsequently offered to another individual in January 2012.
Accordingly, the Tribunal awards the sum of €8,700.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)