EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Bernice Barrington (claimant)
UD1144/2013
RP785/2013
Against
Whitespace Publishing Group Limited
(respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr C. Lucey
Mr T. Brady
heard this claim at Dublin on 27th November 2014
Representation:
_______________
Claimant(s) : Conor Power S.C, The Ormond Building, 31-36 Upper Ormond
Quay, Dublin 7
Respondent(s) : No appearance by or on behalf of the respondent
The Tribunal noted that there was no appearance by or on behalf of the respondent. The Tribunal is satisfied that the respondent was on notice of the hearing.
The claimant was called to a meeting on 10th April, 2013 and was informed that her job was gone. She was employed as a sub-editor and was in charge of a particular supplement for a national newspaper.
The newspaper concerned took that supplement back in-house. The Tribunal is satisfied that the claimant was dismissed by reason of redundancy and is entitled to a redundancy payment as set out below.
Her Council argued that she was also unfairly dismissed under the terms of the Acts. Her Council argued that her dismissal was also unfair because of the way it was handled. There was no proper process, that her redundancy lump sum was not even paid to her and that there was no advance notice. He also argued that she was unfairly selected for redundancy and pointed to a comparator.
There was no appearance by or on behalf of the respondent and therefore no case was made against the claimant. Nonetheless, the Tribunal had careful regard to the works of the statute, in particular Section (6) of the 1972 Act as amended.
Unfair selection for Redundancy is provided for by Section 6(3) as follows:
(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either— | |
(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dimissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal. |
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The Tribunal is doubtful that the terms of this section applies and the Tribunal is doubtful that the comparator was in “similar employment”. It is also not established that the circumstances “constituting the redundancy” applied equally as between her and the comparator. Moreover, there was no trade union agreements providing for a redundancy procedure, nor was “custom and practice” established.
The Tribunal however, considered Section 6(7) of the Act as amended by the 1993 Act:
“where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal.
In the absence of the respondent who failed to file a T2 or attend the hearing, the Tribunal does consider it “appropriate” under this section to have regard to the conduct of the respondent in relation to the dismissal and find the dismissal unfair under that provision.
As a substantial ground i.e redundancy existed to justify dismissal under Section 6, the award of compensation under Section 6 (7) would be reduced. Compensation under Section (7) is to be “just and equitable having regard to all the circumstances”, and the Tribunal must have regard to the fact that a “substantial ground” existed. The Tribunal must also take into account the amount of the redundancy payment which is also being awarded.
The Tribunal determines the cases under the above Acts as follows:
- Redundancy Payments Acts:
The claimant is entitled to a redundancy lump sum based on the following:
Date of commencement: 19th February 2007
Date of termination: 10th May 2013
Gross weekly pay: €529.62
Redundancy due: €7,141.50
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
- Unfair Dismissals Acts, 1977 to 2007:
We award the claimant €21,000 compensation as “just and equitable, having regard to all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)