EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Anne O'Donoghue UD79/2013
against the recommendation of the Rights Commissioner in the case of:
South West Doctors On Call Limited (South Doc)
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
Mr J. Flavin
heard this appeal at Killarney on 3rd July 2014 and 19th September 2014
Representation:
Appellant:
Mr. Martin Corbett, SIPTU, Connolly Hall, Lapp's Quay, Cork
Respondent(s) :
Mr. Damien Cahill, IBEC, Knockrea House, Douglas Road, Cork
The determination of the Tribunal is as follows:
This case came before the Tribunal by way of an employee’s appeal against the recommendation of a Rights Commissioner ref: XXXXXX, under the Unfair dismissals Acts 1977 to 2007.
Summary of Evidence:
The respondent provides a service,under contract, for the HSE. The appellant commenced employment with the respondent as a driver in October 2006. From 2008 the appellant worked as a driver collecting pathology samples from doctors’ surgeries in two geographic areas (being the northern area and southern area (NK & SK) of a county in Munster) and delivering them to the hospital laboratory.She collected samples from one geographic area in the morning and delivered them to the laboratory by 1.00pm and in the afternoon she collected and delivered the samples from the other area to the same laboratory between 3.45 and 4.00pm that day. She worked 30 hours per week.
In or about June 2011 the laboratory stipulated that all blood samples had to be delivered to it by 3.00pm each day. This change required a reorganisation of the work, with the two geographic areas now having to be allocated between two drivers. The appellant was informed of this reorganisation at a meeting on 20 July 2011 and she indicated her interest in the position of driver for the NK area even though this would involve a reduction in her hours of work to 12.5 per week. The appellant understood that her options were to accept the reduced hours or be made redundant. By letter dated26 July 2011 the respondent notified the appellant that her full-time position was being made redundant as two runs would be necessary to facilitate the 3.00pm deadline and asked her to advise if she were interested in taking up one of these positions.
Further discussionstook place between the respondent and the appellant’s trade union representative (TU) during which the respondent put forward possible alternative positions for the appellant and TU raised the issue of a loss of earnings claim for the claimant were she to accept the NK run. In a letter dated 24 August 2011 to the appellant the respondent re-iterated that her full-time position was redundant, referred to alternative available positions, acknowledged her interest in the NK position, which was only for 12.5 hours per week and indicated that it would not entertain a loss of earnings claim (this issue having been raised by TU). The appellant was not interested in the alternative positions on offer, which would involve working in different positions.The appellant was either medically unable or not interested in the alternative positions offered to her. She had the chance of an external evening job, unconnected to the respondent.
In his letter of 31 August 2011 TU informed the respondent that the appellant was prepared to accept the NK run, indicated that she would be pursuing a claim for compensation in respect of her loss of earnings and in the event of non-payment by the respondent the matter would be referred to a third party. The respondent took the position that the appellant was rejecting the offer of alternative employment and in its letter of response dated 1 September 2011, the respondent notified the appellant that her position was being made redundant as and from 3 October 2011 and enclosed redundancy a form RP50 for her signature. In this letter the respondent informed the appellant that she could apply for the NK position.
It was the appellant’s position that at all times she made it clear to the respondent that she wanted to continue working as a driver albeit on reduced hours and that she did not accept being made redundant and never signed the form RP50. It was the appellant’s contention therefore that she had been unfairly dismissed by the respondent.
Determination:
In the reorganised system for the collection and delivery of the pathology samples the work formerly performed by the claimant was henceforth to be allocated between two drivers, thus creating two positions. The appellant had at all times made clear to the respondent her interest in one of these positions, in particular the position of driver in the NK area, which formed part of her duties in the original system. An issue arose as to the claimant’s shortfall in pay if she were to accept that position. However, in abruptly ending the negotiations between the parties and terminating the appellant’s employment, by its letter of 1 September 2011, in response to TU’s letter of 31 August 2011, the respondent had not acted reasonably. Accordingly, the dismissal was unfair.
In the circumstances the Tribunal finds that the dismissal was unfair and that compensation is the appropriate remedy. Taking into account the appellant’s loss together with her efforts to mitigate that loss the Tribunal awards the appellant €28,000.00 under the Unfair Dismissals Acts, 1977 to 2007. This award is over and above any payment already made to the appellant in respect of redundancy.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)