UD1394/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                     CASE NO.

Ronan Lawless

 - claimant                                                                                                                    

                                                                                                                              UD1394/2013

against

Techrete Ireland Limited

 - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms O.  Madden B.L.

Members:     Mr R.  Murphy

                     Mr N.  Dowling

heard this claim at Dublin on 18th December 2014

                                           and 12th February 2015

Representation:

_______________

Claimant(s) :       Mr Liam Bell BL instructed by Dermot McNamara & Company, Main Street,

                            Rush, County Dublin

Respondent(s) :   Ms Lauren Tennyson BL instructed by A&L Goodbody Solicitors,  

                            International Financial Services Centre, North Wall Quay, Dublin 1

Respondent’s Case

The respondent company designs, manufactures and supplies precast concrete cladding products to the construction industry with factories in Dublin and the UK. The Irish factory unit has a number of departments including, production, pouring, polishing, carpentry, handling/transport, and finishing departments.

The Finance Director of the company gave evidence that up to 2007 business was steadily growing particularly in the Irish market. However from 2007 onwards with the general downturn in the Irish construction sector business collapsed. Turnover in the Irish business reduced from over €20 million in 2006 to €7.6 million by 2013. The Irish operation became totally dependant on the UK market and it became necessary to introduce cost savings measures across the board. Difficult decisions had to be taken which resulted in a 10% wage cut being introduced in 2009 followed by a further 5% pay cut in 2011. Redundancies were also necessary and the Irish workforce was reduced over a number of years from 150 down to 80.

The Tribunal heard evidence that there was a temporary pick up in the market due to the construction of the Olympic village in London for the 2012 Olympic Games and the company made a number of recruitments specifically for this purpose. The claimant was hired in April 2012 and the witness gave evidence that he worked in the finishing department of the Dublin factory which made products for the Olympic work. As the work on the Olympic project came to an end the company again became overstaffed. All through 2013 all departments of the Dublin factory were losing money and there was a requirement to reduce staff levels. Three departments were identified as having to reduce staff levels and the claimant, along with two other employees were made redundant in August 2013. This was followed by a further four employees being made redundant six weeks later.

The witness gave evidence that all redundancies are implemented on a last in first out (LIFO) within department basis. He told the Tribunal that this is a long established normal practice within the company and with the agreement of SIPTU. He accepted that this agreement is a verbal agreement and not a written agreement. The claimant who worked in the finishing department was made redundant in line with this long established practice and no employee with less service than the claimant in the finishing area was retained in employment. The company looked at other options but every department was suffering. Temporary lay-offs or re-deployment were not feasible options. The claimant was issued with his P45 and a letter for Social Welfare purposes when he was made redundant.

The Tribunal heard further evidence that sons of existing employees were recruited on 23 September 2011 and 23 June 2012 one of whom is employed in the production department and the other in quality control.

The Tribunal heard evidence from a SIPTU trade union official. He gave evidence that while he was not directly involved in redundancy negotiations with the company he was aware that redundancies and cost cutting measures were implemented. He had telephone contact with the works manager at that time and he described the selection criteria adopted by the company in relation to the implementation of the redundancies as (LIFO) all things being equal. He has no recollection of the claimant or any individual employees contacting him with any grievance in relation to the redundancy process.

The works manager gave evidence that he has been employed by the respondent company since 1990 and was the person charged with the responsibility of selecting individual employees for redundancy. He told the Tribunal that he implemented the redundancies based on a selection criteria of (LIFO) by department basis. He gave evidence that this is the selection criteria that has always been used by the company in his 25 years of service and is carried out with the knowledge of SIPTU. This criteria has been the custom and practice used and SIPTU have never raised any issues/grievances in relation to this selection criteria. He engaged with SIPTU’s two shop stewards during the process who accepted that (LIFO) by the department basis as the selection process to be adopted. In that regard he accepted that the staff information handbook states that “Selection for redundancy will generally take place on a last in/first out basis” and does not refer to a department basis. He stated that this was a fault in the handbook.

He gave evidence that the claimant was hired as a general operative in 2010 and was based in the finishing department. He was made redundant approximately one year later in February 2011. He was re-hired in April 2012 working again in the finishing department and was subsequently made redundant in August 2013. He gave evidence that the claimant worked for approximately one month in the production department in in or around September 2012 covering sick absences/holiday absences of other employees. This work was at the lower level of work in the production area. He told the Tribunal that 95% of the claimant’s employment period was based in the finishing department.

He gave further evidence that other employees were made redundant from the production department and handling/transport department subsequent to the claimant being made redundant. Some of these employees including an employee with less service than the claimant were subsequently re-hired by the company. However they were not employed in the finishing department and had different skills sets to the claimant. Apart from one incident concerning the claimant’s standard of work in June 2013 he had no issues with the claimant’s work performance and described him as a good worker. He gave evidence that the claimant suffered a workplace injury in November 2012 which resulted in him being absent from work for a number of months. The claimant brought a personal injuries claim against the company as a result of this accident. He returned to work in April 2013 and the witness denied that his relationship with the claimant deteriorated following this accident and he had no issues with the claimant making a claim for his injuries. He told the Tribunal that he met with the claimant and gave him one week’s notice of his redundancy. He denied that there was any unpleasantness at that meeting and the claimant did not raise any grievance in relation to his redundancy.

Claimant’s Case

The claimant gave evidence that prior to being hired by the respondent company he had a general background in the construction industry and is a qualified bricklayer. He is a qualified fork-lift driver and has experience in electrical, carpentry and plastering work. He told the Tribunal that he was interviewed by the works manager for the general operative position and was not told that his employment was specifically confined to the finishing department. He gave evidence that his work was not restricted to the finishing department and he regularly worked across many departments as required. He had an extensive skills set and operated the gantry crane. From 2012 onwards he worked in the production area as often as he worked in the finishing area. He took direction from Mr. (M), assistant production manager who worked in the finishing department but also took direction from others depending on where he worked.

He gave evidence that following his workplace accident his relationship with the works manager deteriorated. At time he was made redundant he described the company as being “out the door with work” and could not understand why he was being made redundant. He did not accept that documentation produced to the Tribunal indicating that he worked predominantly in the finishing area was accurate. He was not offered any alternative to redundancy and prior to receiving notice of his dismissal he was never informed that his job was in jeopardy. He described the meeting with his works manager when he was notified of his redundancy as an unpleasant meeting. He was a member of SIPTU but he did not raise a grievance with the shop steward in relation to his redundancy as he was unhappy in general with their representation.

The Tribunal heard further evidence in relation to his efforts to mitigate his loss since his dismissal and the claimant confirmed that he secured alternative employment in March 2014.

Determination

The Tribunal carefully considered the evidence adduced at the hearing. In determining this case the Tribunal in particular considered in the first instance if, in the circumstances a genuine redundancy situation existed and secondly the selection criteria adopted by the company.

The Tribunal is satisfied that a genuine redundancy did exist and in this instance the Tribunal is further satisfied that a custom and practice existed for many years whereby (LIFO) by department basis was applied by the company in relation to the implementation of redundancies. In that regard the Tribunal notes that no evidence was put forward by the claimant that contradicted this evidence.

On that basis, the Tribunal is satisfied that there was a genuine redundancy in all the circumstances and the claimant was not unfairly selected for redundancy. Accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)