EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Patrick Quigley TE195/2013
Appellant
against the recommendation of the Rights Commissioner in the case of:
Doapey Co-Operative Agricultural & Diary Society Limited
Respondent
under
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O’Carroll Kelly B L
Members: Mr T. O’Sullivan
Mr. O. Nulty
heard this appeal at Monaghan on 28th October 2014
and 3rd February 2015
Representation:
Claimant(s) : Mr. Dominic Wilkinson BL instructed by:
Jones Magee Solicitors, 1, Eglington, Bray, Co. Wicklow
Respondent(s) : Kevin Hickey Solicitor & Brian Carroll BL,
c/o Barry Hickey & Henderson Solicitors, The Diamond, Clones,
Co. Monaghan
This order should be read in conjunction with UD1041/2013 as they were heard in tandem.
This case came before the Tribunal where the appellant (employee) was appealing the Rights Commissioner recommendation under the Terms of Employment (Information) Act, 1994 and 2001, reference: r- 135903-te-13/SR.
The decision of the Tribunal was as follows:-
Background:
The respondent company is agricultural and dairy co-operative. The appellant was employed from the 8th May 1978 until his termination on the 2nd May 2013 as the Manager on a gross weekly wage of €810.92. Two other staff were employed by the respondent – a Bookkeeper and a Storeperson.
Due to the downturn in the economy the respondent was losing money. Having discussed the matter with the company accountant and viewing the company accounts it was decided that there had to be a reduction in the €140,000 yearly costs needed to run the co-operative without closing the 120 year old business. It was decided the appellant’s position would be made redundant.
The appellant was given notice of his termination and paid a statutory redundancy payment for his 35 years of employment.
The appellant contends he was never given a contract of employment and was unfairly selected for redundancy.
Respondent’s Position:
The Chairman (PK) of the Board gave evidence. He explained that the company was beginning to run at a loss and gave evidence of the company’s accounts. The appellant, he said, was well aware of the financial situation the respondent was in at the time. Savings had to be made in order to save the company closing down and it was decided the appellant’s position would be made redundant.
The appellant was informed of this and letters of correspondence between the parties were opened to the Tribunal. PK explained that the duties the appellant had performed were distributed to the finance committee of the respondent. He told the Tribunal there was no alternative but to make the appellant redundant.
On cross examination he refuted the appellant had been made redundant because of the amount of his salary.
When asked about the appellant’s requests for a contract of employment he said that would have been before his commencement of tenure as Chairman.
Appellant’s Position:
The appellant gave details of his employment history and qualifications in the particular type of industry. He managed the entire day-to-day running of the co-operative including the financial aspect, liaised with the Chairman (PK) and reported to the committee of the respondent company. He explained to the Tribunal that on his commencement he had requested a copy of his contract of employment from the previous Chairman but never received. He again requested it some years later and again never received one.
In October 2012 he had a casual meeting with PK who told him to “consider his position”. Redundancy was mentioned but he, the claimant, did not think it was a serious consideration for the committee. PK reiterated this statement on another two occasions. The appellant replied he would have to “get the going rate”.
On the 30th November 2012 he received a letter from the respondent regarding the company’s poor gross profit margins. This letter stated:
“As all this comes within your remit as manager of the co-op, the board have had to consider the possibility that you have not exercised your duties in the manner expected of you and this has resulted in losses for the company.”
The appellant was invited to explain the shortfall to the Board within seven days. The letter also stated:
“… in the absence of satisfactory explanations, the board will take necessary steps to protect the finances of the company.”
The appellant told the Tribunal that he was not supplied with any further information in order to compile an informed reply. He was completely surprised by the contents of the letter, he had never been disciplined in his employment with the respondent. The appellant told the Tribunal that the respondent did not want any answers as they had not supplied him with any financial information to work from. He felt it was all a ruse to get rid of him. On the 6th December 2012 he submitted a “general” reply. No-one from the respondent commented on this reply.
In January 2013 he received a call to check his availability for a meeting. PK, the Vice Chairman (MG) and a committee member (TG) met with him and offered redundancy. He replied that “it wasn’t going to happen”. They handed him a letter stating his letter of reply dated the 6th December 2012 was unsatisfactory and invited to submit a more detailed response. He was also informed in the letter that failure to do so could result in disciplinary action including a review of his position as Manager. He did not reply to the letter. However, the Dairy Executive Association (DEA) replied on his behalf.
In late January 2013 he met with the respondent’s Auditor and went through the details of the redundancy package. The Auditor informed the appellant that he had no authority to enter into negotiations regarding the redundancy package and would have to revert back to the Board.
On the 4th March 2013 he attended the monthly Board meeting. PK informed him he was to be made redundant with immediate effect and was to hand over his keys to the premises. He was shocked but handed over the requested keys and said he would collect his belongings the following morning. He was handed a letter dated the 7th March 2013 at this meeting regarding his redundancy and monies owed. He was not given the opportunity to appeal the decision.
In July 2013 he received his statutory redundancy payment and other monies owed. He gave detailed evidence of loss.
On cross-examination he said that he had been aware of his rate of pay and leave entitlements while working for the respondent but nothing had ever been given to him in writing. When asked if he could have drawn up his own contract of employment as he was the Manager of the office he replied “how could I?”.
He agreed he had discussed redundancy with PK in October 2012 but was shocked when he had indeed been made redundant in March 2013. He said no discussions, considerations of service or selection process had been discussed. He said that one or both of the other employees could have been selected for redundancy. He explained that the respondent had gone through difficult financial situations in the past and had come through them.
Determination:
The Tribunal have carefully considered the extensive sworn evidence and submissions adduced in this matter. Taking all the circumstances into consideration the Tribunal upholds the Rights Commissioners recommendation and therefore the appeal under the Terms of Employment (Information) Acts, 1994 to 2001 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)