UD1012/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

Jennifer Byrne

- claimant                                                                                                       UD1012/2013

Against

The North West Inner City Family School Project Limited

T/A Aosog

                        - 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 T.  Brady

heard this claim at Dublin on 15th September 2014 and 17th November 2014

Representation:

Claimant: Ms Louise Bennett,

                 Brian O'Brien, Solicitors, 129 Capel Building, Marys Abbey, Dublin 7

Respondent: Malone & Potter Solicitors, 7 Cope St, Dublin 2

Summary of Evidence:

The respondent company is a state funded organisation providing support to individuals and groups in the North Inner city. Programmes include social and personal development of children and parents. Educational support and sporting activities are also provided. The organisation is made up of a voluntary board with the chairperson employed by the HSE. The respondent submitted that the claimant was dismissed by reason of redundancy in circumstances where funding was removed in the area she worked. The respondent made every effort to restore the funding but this failed. The claimant’s excellent work record was not disputed.

The claimant submitted that an alternative part time position was not offered to her. She was not offered any fair procedures. No consultation and no selection criteria were ever established.  The funding cut was imposed by the City of Dublin Youth Services Board (CDYSB) an organisation which comes under the remit of Dublin City Council and was not the employer in this case. An employee taken on to cover maternity leave was kept on after the redundancy.

Voluntary board member (SS) and national education welfare officer  gave evidence of  the funding cut imposed by CDYSB. The funding cut directly effected the over 12 years age group which was the group the claimant had responsibility for in the organisation.

The board fought to get a meeting with the liaison officer from CDYSB (MH). The process was very unsatisfactory and CDYSB rejected that they were the employer in this case and refused to pay the redundancy due to the claimant. The first meeting with employees to discuss funding cuts was held on the 14 March 2012. The claimant was informed of the funding cut and of her redundancy on the 16 April 2012. The respondent organisation borrowed money in order to ensure the claimant received her statutory redundancy. The witness later heard the claimant’s appeal and as no new points were raised the dismissal was upheld. The option of working reduced hours was not possible and the claimant had not indicated she would be interested in this alternative. The role working with under 12’s was no longer available even in a reduced capacity. SS denied that employees offered to reduce there working hours and that this alternative was rejected by the board.

The chairman of the group (an employee of the H.S.E.) herein after referred to as FB gave evidence to the Tribunal. FB told the Tribunal that there were two sources of funding, one being the HSE and the other being CDYSB. The particular project the claimant was engaged in was wholly funded by CDYSB and when this funding ceased that project ended and the claimant’s position became redundant.

Other work became available due to the resignation of another employee who had been on maternity leave and this work was given to the person who had been employed to fill in during this employee’s absence. It was the claimant’s position that she ought to have been offered this work instead of the person who was employed on a temporary basis and she made it clear to the respondent, by way of letter dated 15^th March 2013, that she was willing to accept this part-time work going forward.

However it was the respondent’s position that the claimant did not express an interest in doing the job offered to the temporary employee and it was their position that they could not dismiss this employee in favour of keeping the claimant.

Determination:

It is quite clear from both the correspondence and evidence adduced at the hearing that there was part-time work available within the respondent’s organisation which should have been offered to the claimant but was instead offered to another employee with far less service. The Tribunal acknowledge that a genuine redundancy situation existed, however in the circumstances the claimant was unfairly selected and her claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.

The Tribunal awards the claimant €10,000.00, which is over and above and in addition to the redundancy payment already made. Furthermore the Tribunal directs re-engagement of the claimant, within three weeks of this order, as per the 3 day week part-time work already offered by the respondent on the same terms and conditions that applied to her previous employment with the respondent.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)