UD1359/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

Marea O'Brien                                                                                            UD1359/2013

-Claimant                                           

against

Euro Care Healthcare Limited

-Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms S.  McNally

Members:        Mr. L.  Tobin

                        Mr. F. Dorgan

heard this claim at Waterford on 16th December 2014

                                                      and 3rd March 2015

Representation:

Claimant:         Ms Geraldine Malone, SIPTU, Membership Information &,

                        Support Centre, Liberty Hall, Dublin 1

Respondent:    Mr. Frank Scott-Lennon, HR For SME's.Ie, 30 The Palms,

                        Clonskeagh, Dublin 14

Background:

The respondent’s representative contends that the claimant’s employment ended because her position was made redundant following a re-structure.  The claimant’s representative contends that the claimant was unfairly dismissed; procedures were not fair or balanced.  The selection process was flawed and there was no right of appeal.

Respondent’s case:

The Tribunal heard evidence from the CEO of the company.  He was financial director at the time in question.  He told the Tribunal that a receiver was appointed to the company in July 2011.  KPMG the share receiver asked the respondent company to address certain matters.  The respondent had difficulty in that it had no funding or banking facilities.  The company was run on a cash-in-cash-out basis.  The company was on a “knife edge.”  In 2013 the company “turned a corner” and the financial situation improved. The receiver instructed that shares were to be sold in the open market.

At some point in time it was decided or proposed to re-structure the company for efficiency; to streamline the company.  The witness explained that he issued a notice to all staff to that effect.  He asked the staff to attend a briefing meeting in March 2013.  He outlined a case to the staff to explain the process.  There was a lot of discussion and a lot of questions.  All of the questions were answered and he was available afterwards to answer any questions.  The whole process was communicated to staff.   

The witness was asked if the staff were clear that they would be competing for positions (re-structuring) and he replied that if they were unsuccessful in applying for a position then they would be redundant and he would facilitate as many people as possible that they could have a position.  He did make it clear that redundancy was an option, as was flexi time and job sharing. 

The last meeting he and the Human Resources Manager had with the claimant was Friday 12^th April 2013. He met with her to discuss her contract of employment and he offered her a job sharing role.  He was willing to give her time to consider.  The claimant told him that she would consider the matter and revert to them later that day.

The witness was cross-examined.  He was asked if he had the notes of the meeting between the claimant and HR.  His representative said they had not.  The witness stated that he did not have those details.

The representative for the claimant requested that it be noted that they requested the minutes of the meeting as there was going to be a conflict of evidence regarding that meeting; the company to have minutes to support their evidence

Regarding the interview meeting that the claimant attended: the CEO was not involved in the interview process.   He understood that the claimant was not successful in obtaining a 39 hour week position but she was successful in being offered a 19.5 hour position.   If the claimant did not accept or sign for the 19.5 hour position they would offer it to another person, “We had to consider another person as well, there were two people on 19.5 hours so if she did not want the 19.5 hours role then we could offer the other person a full time role”, “the other person was on tender hooks”.  It was put to the witness that he was pressurising her to sign away her terms and conditions of employment, that she phoned her husband and left.  

It was put to him that on Monday, 15^th April 2013 the claimant sent in a sick cert, and he then sent her a letter terminating her employment, and he replied “Yes”.

The Human Resources Manager gave evidenced that seven other staff members were also offered contracts on reduced hours.  There were four compulsory and one voluntary redundancy at this time and the employees were well aware that this was a possibility.

The witness was present at the meeting with staff on the 7 March and recalled that the main questions asked by staff surrounded terms and conditions.  There were no minutes taken of this meeting as it was to be a frank discussion with staff.  The CEO responded to a query in relation to redundancies by saying it was hoped that the company could offer work to all of the affected employees.  However, he also stated that the possibility of redundancy was a separate conversation.  From this meeting the claimant would have been aware that the position of theatre scheduler no longer existed. 

An interview information coaching session was held on 13 March 2013.  The claimant applied for the position of Patient Services Clerk.  The Human Resources Manager was one of three individuals on the interview panel.  She confirmed that the same questions were asked of each candidate and scores were allocated according to criteria.  Had the claimant had an issue with the process she could have raised it but she did not. 

The claimant was offered a 19.5 hour contract following the interview process.  The claimant was provided with five extensions to the time given for the signing of the contract but she did not sign it.  When the Human Resources Manager and the CEO met with her on 12 April 2013 the claimant was assured that she would not be made to sign the contract under duress but that an update was required.  The claimant was to revert with an answer that evening but she did not.

A union representative later contacted the Human Resources Manager the following Monday stating that the claimant could not sign the contract as she needed time to consult with the union.  However, the Human Resources Manager had previously extended the time to allow the claimant to seek advice.  The claimant was also working the new arrangements.  The claimant’s redundancy payment was calculated and details provided to her.

During cross-examination the Human Resources Manager stated that she provided the claimant with summary feedback of her interview and the claimant said she was satisfied with that.  It was open to the claimant to pursue the scoring had she so wished.

In reply to questions from the Tribunal, the Human Resources Manager confirmed that the new contract contained a probationary period.  However, staff were employed a long time with the company and therefore it was expected that the employees would pass the probationary period.  The option to dismiss was present after the probationary period but a need to invoke it was not envisaged.  There were no issues with the claimant’s skills or competencies.

LB has held the role of Patient Services Officer since January 2013.  Prior to this role she held the position of interim administration team leader when the receiver was appointed.  She was also the claimant’s line manager.  LB attended the presentation by senior management in March 2013 and stated that a robust question and answer session followed.  The CEO asked anyone with thoughts regarding redundancy to revert to him. 

The claimant subsequently submitted the roster to the witness on the part of herself and her job-sharing colleague and LB took it that there was acceptance of the 19.5 hour contract and implemented it effective from 8 April 2013.

On 15 April 2013 the claimant did not attend for work.  The claimant’s husband contacted LB and stated that the claimant was attending her doctor.  A medical certificate was submitted later that day.   

LB was also a member of the interview panel.  She confirmed that the same questions were asked of all the candidates and the same scoring system applied.  If the panel disagreed in relation to scoring for a particular candidate then the candidate was given the benefit of the higher score.  The standard of the candidates at interview was exceptionally high.  During cross-examination the witness accepted that the claimant was not given the breakdown of the scoring at the interview feedback meeting.

Claimant’s Case:

It was the claimant’s evidence that she commenced working for the respondent in December 2008.  The claimant initially held the position of medical secretary but over the course of her employment she carried out roles in all the various administration areas and she was one of the few employees that was cross-trained.

The claimant attended the meeting on 5 March 2013 and recalled that staff were informed that there were 18 positions for 26 employees but that it was hoped everyone would be retained in employment albeit with a reduction in hours.  The claimant thought that the cut in hours would be across the board for all of the 26 employees.  The CEO stated that if anyone did not apply for the positions then they would have to talk to that person as that would be another issue.

The claimant attended for interview for the position of Patient Services Clerk which was advertised as a 39 hour position.  When the claimant was subsequently informed that she was unsuccessful for this position but that the company could offer her a 19.5 hour position, the claimant was disappointed but at that time she believed the reduction in hours was across the board.  The claimant requested the breakdown of the scoring from the interview but was only given a summary.  The claimant was informed that she was not enthusiastic enough at interview. 

Although she started working the hours as per the new roster from 8 April 2013 she believed it was known that this was under protest as she continued to raise the issue with the Human Resources Manager about the reduction in her hours.

Subsequently, the claimant came to realise that not all of the employees had suffered a reduction in their hours.  In addition the claimant noted that temporary employees on “bank contracts” continued to enjoy full-time hours.  The claimant raised this with her line manager but was told by LB that her “hands were tied.”  The claimant did not sign the new contract for 19.5 hours. 

The claimant attended the meeting on 12 April with the Human Resources Manager and the CEO who asked the claimant if she was going to sign the contract.  The claimant raised a number of issues about the contract including the outlined probationary period.  The claimant described in evidence that she felt pressurised at this meeting.  She stated to the CEO that she was unhappy with the contract and asked what would happen if she did not sign it.  The CEO replied that a redundancy situation would arise.  The claimant stated that this was the first time that the possibility of redundancy was mentioned and she requested some time.  The CEO told her to take a half hour and revert with her answer. 

The claimant felt petrified and upset following this meeting and did not return to the meeting.  The following Monday, 15 April 2013 the claimant attended her doctor and a medical certificate was submitted that day to the company stating that the claimant was suffering with stress.  The claimant was shocked to receive a letter that day from the Human Resources Manager stating that as per the sick leave policy the claimant should have made contact directly with her line manager regarding her absence.  The claimant was also requested to make contact with the Human Resources Manager by 3pm with an update as to her acceptance or otherwise of the employment offer.  The claimant did not feel that she could make a decision at that time and she attended the union office.  A telephone call was placed to the company on her behalf and it was outlined to the company that the claimant required some time to meet with a union representative.  However, when the claimant returned home at 6pm, the redundancy paperwork had been put through her door and a redundancy payment was transferred the following Monday.  

The claimant gave evidence of loss and efforts to mitigate that loss.

MW gave evidence that she commenced working with the respondent in October 2006 and was present at the management presentation when restructuring was discussed; however there was no mention of redundancies at this meeting.  MW understood that all staff must apply for the positions offered. 

MW also applied for the 39 hour position and was offered a 19.5 hour position.  She was not provided with the scoring from the interview but was given the same feedback as the claimant that she was not enthusiastic.  MW was unhappy with the hours offered and she felt it was unjust.  She raised this in a meeting and also in an email to the Human Resources Manager on 9 April but did not receive a response.  MW requested a meeting again on 16 April to discuss the contract offered.  At this meeting the Human Resources Manager informed her that due to a change of circumstances the company could now offer her a 39 hour position.  MW was not informed that if she did not sign the contract for the 19.5 hour position that her position was redundant.

Determination:

It is accepted by the Tribunal that the company had a financial need to restructure.  The Tribunal finds that the company was reasonable in its approach in the timetable attached to the restructure.  The interview process was also reasonable in its approach and implementation.

However, the procedures used at the conclusion of the claimant’s employment were procedurally unfair.  The Tribunal notes in particular the letter delivered to the claimant after she had submitted a medical certificate stating that she was suffering with an illness.  Given this and also the telephone contact from the union the company should have afforded the claimant some further time rather than terminating her employment.  Accordingly, the Tribunal finds that an unfair dismissal occurred.  The Tribunal deems the appropriate remedy under the Unfair Dismissals Acts, 1977 to 2007, to be compensation.  The Tribunal awards the claimant the sum of €11,400 (over and above the sum of redundancy paid to the claimant). 

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)