EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Tomasz Kasak -appellant UD91/2013
against the recommendation of the Rights Commissioner in the case of:
Resource Facilities Support Limited-respondent
Resource Support Services (Ire) Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. W. O'Carroll
Ms H. Murphy
heard this appeal at Ennis on 15th July 2014
Representation:
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Appellant: Mr. Gearoid Howard, Crimmins Howard, Solicitors, Dolmen House,
Shannon, Co Clare
Respondent: Mr John Barry, Management Support Services, The Courtyard,
Hill Street, Dublin 1
Respondent’s Case
The respondent had two cleaning contracts with a company based in Shannon Airport. One contract was to provide office cleaning and the other was to provide ‘technical washing’ services i.e. washing bays. The office cleaning operated in two shifts; 8am to 4.45pm and 3pm to 11.45pm with two cleaners working each shift. The appellant was one of the four daily office cleaners and worked from 3pm to 11.45pm. The techwash department provided services on the basis of a phone call at 3pm to request a number of washes at 8pm; this is irregular work and all staff in the techwash department are on short-time.
The client requested a reduction in cleaning services by two operatives on the evening shift. This was announced to all the staff. ‘LIFO’ was applied to all four of the cleaning staff which resulted in the appellant being selected for redundancy.
After the appellant was informed of this he requested a position in techwash. There was no position available in techwash at that time although it is now accepted by the respondent that the appellant is also capable and had experience in the techwash position. There was 10 people working in techwash, all on short-time from 2009. There were two staff with shorter service than the appellant in techwash but the two departments were considered independently for redundancy purposes. The appellant was given the current vacancy list.
Appellant’s Case
The appellant commenced employment in the techwash department on the 8th of January 2007. He remained in the techwash department until 2009 when he moved to office cleaning but remained doing both jobs when required.
The appellant objected to being selected for redundancy based on LIFO as he was aware that other people commenced employment after him. The appellant was never given the vacancy list as provided to the Tribunal by the respondent and never contacted for any future vacancies. He was unsuccessful in applying for a position with the respondent that was advertised online the following year.
The appellant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The appellant commenced employment in techwash and continued to work in that area while also in the daily office cleaning role. The appellant’s techwash training was kept up-to-date by the respondent. As the appellant had additional skills he should not have been considered solely as a daily office cleaner for redundancy purposes. This classification of the appellant makes his selection unfair.
The Tribunal upset the Rights Commissioner Decision ref: r-119355-ud-12 under the Unfair Dismissals Acts 1977 to 2007 and award the appellant €17,000.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)