EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD827/2012
RP655/2012
CLAIM OF:
Brendan Campbell
claimant
against
Anthony Conleth Pendred Practicing As A.C. Pendred And Company Solicitors
respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. D. Moore
Mr. N. Dowling
heard this claim at Dublin on 20th April 2015
Representation:
Claimant: Wendy Doyle, Wendy Doyle Solicitors, The Employment Law &Technology Lawyers, Fitzwilliam House, 3-4 Upper Pembroke Street, Dublin 2
Respondent: Mr. David Leonard BL instructed by:
Paul O’Sullivan, Paul O’Sullivan Solicitors, Top Flr 107 Upr Trees Road, Mount Merrion, Co. Dublin
The determination of the Tribunal was as follows:-
Background:
The respondent is a solicitor’s practice owned by the Principal solicitor- ACP. The claimant commenced employment in February 2008 in the position of a practising solicitor and office manager overseeing the day to day running of the practice. ACP’s daughter was employed as a trainee solicitor and law clerk. The claimant’s employment terminated on the 14th March 2012 by reason of redundancy and he was paid a redundancy lump sum of €5,484.00.
Sworn evidence was adduced by the claimant, ACP and ACP’s daughter.
The claimant maintained he was unfairly selected for redundancy.
Determination:
The Tribunal has carefully considered the evidence adduced. The claimant commenced employment with the respondent solicitor’s firm in and around 2008. The parties agreed that the working relationship between the claimant and the Principal of the respondent firm was very good.
Unfortunately by 2012 the firm of solicitors was in financial difficulty and in particular the firm was awaiting payment from the State for work already completed. It is common case that cash-flow was an enormous problem with the company lurching from pay-roll liability from month to month.
The claimant’s evidence is at odds with that offered by the Principal of the respondent employer. The Tribunal is mindful of the fact that the burden of proof rests with the respondent to show that it has acted fairly and reasonably in all the circumstances surrounding the termination of this employee.
The claimant’s representative has asked the Tribunal to attach some weight to the consistency of the claimant’s evidence and the inconsistency of the respondent’s T2 form and the oral evidence offered. Whilst the Tribunal would not have too much regard to the complaint form ordinarily the content of the T2 was so different to the evidence offered by the respondent that secondary corroborative evidence had to be closely considered by the Tribunal.
On balance, the Tribunal accepts the veracity of the emails sent by the claimant to himself over the 28th and the 29th of February 2012 as being contemporaneous accounts of conversations held between the claimant and the firm’s Principal.
Drawing from this evidence the Tribunal therefore accepts that the claimant was told that his job with the firm was going to be terminated with two weeks notice - “You” are being made redundant was said to the claimant.
The claimant’s representative has asked us to consider the fact of dismissal at this point as having been fairly imposed. It is implied therefore that the claimant’s dismissal is unfair by reason of the way it was handled procedurally at this point and before the issue of redundancy and the unfair selection for redundancy comes into the frame.
The claimant makes the case that the termination of his employment was a fait accompli and it was only after this decision was made that the issue of redundancy was raised and the employer agreed that this was a case in which a redundancy payment could be made. In fact, the company employer have made the appropriate redundancy payment and the employee was in fact paid out of the appropriate external fund.
It is further noted that back wages and annual leave due and owing was finally discharged long after the claimant had left the workplace and in fact the final payment was prompted on the issuing of the Workplace Relations Complaint Form in May 2012.
Much evidence was heard regarding the replacement of the claimant with the respondent’s own daughter (AJP). The claimant offered third party verification of this fact from the Incorporated Law Society which clearly understood AJP to be a solicitor with the respondent’s firm. The Tribunal notes that the situation may have pertained in the immediate aftermath of the claimant’s departure but that AJP’s status ultimately changed when she set up her own practice operating out of the same building though as a separate entity.
It is quite clear that in the aftermath of his redundancy the claimant was, with good reason, left hugely out of pocket by his previous employer and that this coupled with the understanding that he was in fact replaced by the respondent’s Principal’s own daughter really, as he said in his evidence, “got his goat”.
On balance the Tribunal accepts that the telephone call from France during which the claimant was told that a decision had been made to make him redundant was an unfair way to treat a loyal and exemplary employee. No forewarning was given and no alternative was considered.
In considering compensation to be awarded the Tribunal acknowledges that the respondent’s Principal’s intention was to become a sole practitioner which the claimant did confirm in evidence. The Tribunal accepts therefore that with more consideration a lawful and fair termination of employment would have been implemented ultimately.
The Tribunal therefore awards €17,984.00 payable by the respondent under the Unfair Dismissals Acts, 1977 to 2007.
It is noted that a previous payment of €5,484.00 has already been paid at the time of the purported redundancy which leaves a balance of €12,500.00 compensation to be paid in respect of this matter.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)