EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Nigel Coad -claimant
UD1138/2013
against
Eurobase Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Waterford on 16th April 2015
Representation:
Claimant: Ms. Helen Whately B.L. instructed by Mr Sean Ormonde, Sean Ormonde & Co., Solicitors, Suite 9, The Atrium, Canada Street, Waterford
Respondent: Peninsula Business Services (Ireland) Limited, Unit 3
Ground Floor, Block S, East Point Business Park, Dublin 3
Background:
The claimant commenced work with the respondent on 22nd August 2011 as a machine operator. The claimant’s employment was terminated by reason of redundancy on 28th June 2013. The claimant’s gross weekly salary at the time of dismissal was €380.00. It is accepted that there was a need for redundancy but the claimant alleges he was unfairly selected. The respondent disputes the allegation and said that selection was carried out on a need to retain skills basis.
The Respondent’s Case:
NB, Electronics Manager for the respondent told the Tribunal that the respondent company populated printed circuit boards for customers. She gave evidence that due to a loss of a major customer there was a downturn in their business. She said that the loss of this customer affected the surface mount machine area where the claimant worked rather than the soldering area and that in order for an employee to work in the soldering area FÁS certification was needed. This certification involved a ten week training course and was only available to people who had been unemployed for a certain period. She said the claimant did not have this FÁS certification and that he did not do soldering work and worked on the less skilled end of the machine line rather than the end which required setting up the programme. The respondent could not afford the cost of training current employees, such as the claimant, in order to get FÁS soldering certification as the cost was prohibitive and in the order of €60,000.
She said that staff were informed at meetings on 11th and 13th June 2013 of the difficulties. On Friday, 14th June 2013 she wrote to the claimant informing him that due to the downturn in business staff in the surface mount machine area, where the claimant was based, would be reduced. This would be done following assessment by matrix and staff retained would be on a need to retain skills basis. The claimant was informed in this letter that the final selection would not be made until close of business Monday 17th June 2013 and staff selected would be informed on 18th June 2013. The claimant was informed on 19th June 2013 that he was being made redundant as and from 28th June 2013 but the claimant finished work on 21st June 2013 as he was told that he would not be required to work his week’s notice.
NB’s evidence was that she considered other options such as short time but that this would not work due to skill requirements. Out of the six employees on the machine line two were made redundant. In cross-examination it was put to NB that two employees who had commenced with the respondent on 8th April 2013 were retained over the claimant. NB said that this was because these two employees had FÁS certification for soldering. It was put to her that the claimant could and did do soldering but NB said if he did it was minimal. It was put to her that the claimant could and did work at both ends of the machine line but she said that once the line was set up even if the other person on the more skilled end of the line took a break the line could continue without any input from the claimant.
It was also put to NB that soldering was not in the matrix.
Evidence was also given by JC, Managing Director and founder of the respondent company. She reiterated what NB said and stressed the difficult situation the respondent company found itself in and their strive for the survival of the company.
The Claimant’s Case:
The claimant told the Tribunal he was a qualified electrician and had been self-employed running his own business venture prior to commencing work with the respondent. He said he could and did work on both ends of the machine line such as when an operator was on a break or was off for some reason. He said he could solder and did do some soldering in the respondent company.
He disputed that the respondent had considered all options in that some of the people on the machine line could do soldering and could have been moved to the soldering area instead of taking in the two new people on 8th April 2013 and letting two employees go.
The claimant said he wasn’t allowed to see the matrix assessment for other employees and that there was no mention of an appeal regarding the decision to make him redundant.
In cross-examination he accepted that the two employees taken on in April had different qualifications and could carry out soldering but he said he could do it too.
It was put to the claimant that he did discuss the decision to make him redundant with JC, the M.D., and that he asked her to let him remain on until he had the two years’ service in order to claim redundancy and that this would enable him to get onto the State’s back to education allowance scheme. The claimant said he decided to go back to education only because his job was finishing and that he would take a job if one was available.
The claimant gave evidence of his losses and his efforts to mitigate his losses. He said he was back in education since 4th September 2014 studying electrical engineering.
Determination:
Having considered the evidence adduced at the hearing and the submissions the Tribunal finds, and it was accepted by the parties, that the respondent had a need to effect a redundancy due to a downturn in its business. Regarding the selection process the Tribunal finds that because last in first out was not applied the claimant was selected and two employees who had only in or about two months’ service as opposed to the almost two years’ service of the claimant were retained over the claimant on a need to retain skills basis by virtue of the fact that these two employees had completed a ten week soldering course with FÁS and had received the necessary certification.
The Tribunal finds that the respondent did not adequately or at all consider alternatives to redundancy and further finds that had the respondent moved one or two of the machine line operators with soldering skills to the soldering area instead of retaining the two FÁS trained employees then there would have been no need to make the claimant redundant.
The Tribunal further finds that the procedures used in effecting the redundancies were somewhat rushed. The Tribunal does not believe that the respondent acted in bad faith but rather acted in the immediacy of the situation it found itself in order to try and ensure the survival of the business.
In the circumstances, the Tribunal finds that the claimant was unfairly selected for redundancy and was not afforded adequate procedures. Accordingly, the claimant was unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €4,400.
In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)