EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Margaret MacEvilly (claimant) UD805/2013
Against
Kod/Lyons Solicitors (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr F. Moloney
Mr F. Keoghan
heard this claim at Dublin on 16th May 2014 and 19th September 2014
Representation:
_______________
Claimant(s) : Mr Frank Drumm BL
Respondent(s) : Mr Peter McInnes, McInnes Dunne Solicitors
Lower Ground Floor, 78 Merrion Square, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the evidence adduced over the course of this two day hearing. The Claimant was made Redundant on the 19th of December 2012 having been given notice of said redundancy by her employer on the 7th of November 2012. For the purpose of clarification the Tribunal finds that at the time of redundancy the Claimant was employed by the entity known as KOD/L Solicitors having transferred to that entity under the relevant Transfer of Undertakings legislation from the entity previously known as T.L and Co. Ltd.
The Claimant’s case is one of Unfair Dismissal as she says she was unfairly selected for Redundancy. As always, in cases of this type the onus is on the employer to demonstrate that it has acted reasonable and fairly in all the circumstances.
The Claimant had joined the practise of T.L and Co. Ltd. in 2001 and worked as a Solicitor in the Criminal Courts. In 2004 the firm’s principal died unexpectedly. After a period of uncertainty, one of the Solicitors (AF) took over the practise and it is common case that AF and the Claimant worked well alongside one another so that, for example, when AF was out on maternity leave it was the Claimant who took over the day to day running of the practise. The Claimant built up a considerable expertise over the years but as this was primarily a Criminal practise the bulk of her work was in the criminal Courts and the Claimant was particularly busy in the District Court in Blanchardstown.
For reasons of business expediency AF got into talks with the firm of KOD Solicitors and a decision was made to merge the two practices. The idea was driven initially by KOD Solicitors but AF could see the potential in amalgamating these two solid Criminal entities. By mid-2010 a process of due diligence was underway. In January of 2011 the Claimant said she became aware of a rumour that the practise in which she was an employee was being “taken over”. The Claimant indicated that this was not a turn of events that she was expecting. In the 5 or 6 years that she had worked closely with AF there had been, she says, an understanding that a partnership was achievable in the practise of T.L and Co. Ltd. The Claimant had no knowledge what this merger would mean for her or indeed for any of her colleagues and in fact, the fact of a potential merger was not formally announced until August of 2011.
Objectively speaking there can be no doubt that all employees involved in a merger of this sort could have expected a process of rationalisation. Between the two workplaces there was a staff of nearly 50 people. Undoubtedly, support staff such as secretarial and administrative staff would be expected to be anxious in this regard. Additionally the professional staff would have needed to assess where they stood so that, for example, the Claimant knew or ought to have known that one of the partners on KOD/L Solicitors was on permanent assignment to the Blanchardstown Courthouse in which the Claimant worked most days. This fact must have occurred to the Claimant.
The Tribunal accepts that the Claimant could not consider herself to have been in some way insulated from the commercial realities around her. The Claimant had taken a 10% drop in salary in 2010, there had also been one redundancy in T.L and Co. Ltd. in 2010 and the enormous reduction in Criminal legal aid fees would all have been well known to her.
Following the August 2011 announcement there followed a long period of inactivity. It appears that the process of merging took considerably longer than anyone expected it would. In the intervening year, one of the Claimant’s colleagues (MK), who had less service than the Claimant was tasked with becoming part of the merger team and was, the Claimant subsequently learned, made a salaried partner in the new firm. MK worked the Children’s Court, an area the Claimant herself believed she had adequate experience of.
The merging team did engage some outside help to discuss the logistics of bringing the two firms together in the form of Mr. AO. Whilst AF in evidence stated that his advice was at a management level rather than an operational level AO might have made some observations regarding staffing levels. In any event, the evidence is that the partners made a decision that some redundancies would have to be made. The decision was taken by the Equity partners.
It was further agreed that only the Equity Partners and not the salaried Partners would make the final decision.
The evidence established that there were 11 Solicitors in what was to become the new entity. Of these, 5 were Partners (equity and salaried). This left 6 Solicitors whose jobs came into focus. The Tribunal heard a considerable amount of evidence relating to the parties that should be excluded from the selection process and ultimately 3 Solicitors were exempted on the grounds that their jobs were distinct and unique within the framework of the practise so that the Tribunal was told that MM worked the civil courts, E handled immigration and A worked in the area of social welfare.
The decision was therefore made to reduce the selection pool to three persons, C, E and M (the Claimant). Extraordinarily, longevity of service was not a consideration and instead, each of these three Solicitors were to be assessed on what they proposed bringing to the practice rather than what they had achieved in the past.
On 23rd October 2012, the Claimant was invited to a meeting with the three partners, at which time she was told that she was in the pool being considered for redundancy.
The Claimant was utterly shocked at the fact that she was in this predicament. The Claimant gave evidence that the relationship between herself and AF had become distant in the months leading up to this meeting. Whilst AF had indicated that she had an open door policy, the Claimant said she was never available and there was never any indication given to the Claimant that the merger might jeopardise her position as a solicitor of some eleven years standing within the firm. It is worth noting that in the years preceding the merger, the Claimant and AF had discussed the possibilities of becoming a partner with the firm of TL. On the basis of this allurement the Claimant had worked hard and shown loyalty to the firm. Whilst the Claimant probably recognised that the merger would diminish her chances of becoming a partner, the Claimant clearly had no expectation that her services, loyalty and hard work would be discarded.
On the other hand, the Tribunal recognises that the merger was always going to be difficult and that there is inevitability that long standing employees will feel themselves personally slighted. The Tribunal must look objectively at the facts as they presented themselves to the Claimant as soon as she knew there was a potential that she would be made redundant. The Tribunal accepts that the Claimant had been informed of and hadn’t known or understood the significance of the fact that MK had been made a partner. MK was junior to the Claimant and had been made a partner ahead of her. This of itself may not be hugely relevant except insofar as the partnership immediately excluded MK from being in the selection pool in which the Claimant found herself.
Additionally, C appeared on the website to have been appointed to head up the Circuit Criminal Court – a position which the Claimant believed she could with her experience have been easily trained up for. To the Claimant, it appeared as if there was a concerted effort to protect others thereby leaving the Claimant exposed.
The most obvious difficultly was of course the fact that amongst the KOD solicitors was one (also an equity partner) who exclusively handled the Criminal District Court in Blanchardstown where the Claimant herself had carried out a significant portion of her practice. It seems obvious that this clear duplication of roles would be unnecessary into the future and if the said equity partner was not willing to diversify then the Claimant should have either realised that this would cause difficulty for her and/or her employer knew from the time of the initiation of the merger in 2011 that this situation was untenable and encouragement should have been given and provision made to encourage the Claimant to diversify. In consequence of the employers failure to look at the Claimant’s current role, the partners in effect painted the Claimant into a corner which in fact created an inevitability of redundancy for her and her alone. From a starting point in 2010 through two years and up to the end of 2012, the Claimant’s usefulness to the firm had, in effect, been wound down.
The Tribunal also heard evidence that in the course of an in-house row concerning rostering the claimant was told that her “attitude” was noticed and she was “imperilling” her future.
The Tribunal therefore accepts, on balance, that the selection process was not fair, as the Claimant arrived at the process with no warning and was competing against colleagues who had been actively encouraged to diversify their practices when the Claimant was given no inclination or hint that such extremes of diversification would create a protective shield around her. The criteria of “additional value” and diversification into other areas was unfair in circumstances where the Claimant was given one day to show how this had been and would be achieved – albeit further time was ultimately granted. In addition, certain solicitors were ring-fenced for exclusion in a manner which appeared unfair.
When the decision was ultimately made, the Claimant made the case that the burden rested on her employer to show they had acted fairly and reasonably and the Tribunal, having heard all the evidence, accepts that the redundancy selection process was unfair and could be perceived to have been loaded against the Claimant.
In the circumstances, the dismissal was unfair and the failure to have an appeals procedure further compounded the unfairness of the employers treatment of it’s employee.
In awarding compensation, the Tribunal takes into account the genuine efforts made by the Claimant to get on with her career. The Tribunal awards €80,000 but notes a provisional lump sum of €14,388 already paid was of a purported redundancy had already been paid and this sum must be deducted from the compensation lump sum leaving an award of circa €65,612.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)