EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Andrew (Joe) Harris
UD2012/2011
RP2594/2011
Against
Southwest Doctors On Call Limited T/A Southdoc
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. McNally
Members: Mr D. Hegarty
Mr O. Wills
heard this claim at Cork on 16th May 2013, 9th October 2013, 6th February 2014 and 10th April 2014.
Representation:
Claimant(s) : Ms Rachel O’Flynn B.L instructed by Mr. Alan McGee,
Ken Murray & Company, Solicitors, 3 Oliver Plunkett Place, Midleton, Co Cork
Respondent(s) : Ms. Sinead Mullins, IBEC,
Gardner House, Bank Place, Charlotte Quay, Limerick
Respondent’s case:
The respondent is a service provider to the H.S.E. and is 100% funded by the H.S.E.
The claimant was employed as a driver from 2 November 2005 until he was dismissed by way of redundancy on the 14 November 2011. The General Manager for the respondent (MH) gave evidence to the Tribunal. There had been cuts in funding on a year on year basis from 2008 and as a result of this there had been two tranches of redundancies prior to the claimant being dismissed. The previous redundancies were on a last in first out (LIFO) site specific basis, as agreed with the recognised trade union. Accordingly the respondent used the same criteria when selecting the claimant for redundancy. There were a number of general meetings with staff along with meetings with a select committee prior to the redundancy and MH was satisfied that the claimant was fully informed and consulted prior to being made redundant.
MH denied that she had chosen the claimant for redundancy because he was a member of a non-recognised trade union or because he was part of a group of employees who had claims in front of other forums in relation to their employment with the respondent. According to MH other members of that particular trade union and some of those who took other claims are still employed by the respondent. In 2008 the respondent had sought organisation wide redundancies on a voluntary basis but confined this to the claimant’s site when it came to this redundancy. MH told the Tribunal that the reason for this was that the job being made redundant was specific to this site whereas in 2008 they were seeking organisation wide redundancies.
At the hearing on the 9 October 2013 two preliminary matters were raised by the claimant’s representative.
- The absence of the Operations Manager is a concern for the claimant and they were not informed of his absence due to illness in a timely manner. His absence will be a difficulty if the evidence of two meetings held on the 1 June and the 13 June is in dispute.
- The claimant will adduce evidence of his start date being the 19 October 2005 and not the 2 November 2005 as previously stated in the T1A. In circumstances where the respondent’s selection process for redundancy was last in first out the claimant’s case will be that another employee will give evidence of commencing employment after the claimant on the 1 November 2005. In order to short circuit proceedings the claimant’s representative sought a direction from the Tribunal regarding continuing with the case given this new evidence. The respondent’s representative was unable to provide any commencement dates relating to the other employees mentioned and sought an adjournment in order to access the relevant files.
The Tribunal decided to hear the case in full.
Claims were brought under unfair dismissal and redundancy legislation in respect of an employee who had worked as a driver for a company (hereafter referred to as the respondent) which provided a medical doctor call service. His employment was alleged to have commenced in late 2005 and ended in the summer of 2011. It was alleged that due to a lack of equitable procedure or sufficient consultation his selection for redundancy had been inequitable. It was even contended that the respondent had erred in that the claimant had been made redundant ahead of at least one other employee who had less service.
Contesting the unfair dismissal and redundancy claims, the respondent acknowledged that the claimant had been employed as a driver with the respondent at its medical base in Midleton in County Cork. It was submitted that the employment had begun in very early November 2009. However, in late February 2011 the respondent brought to the attention of staff that its finances were in sharp decline. In mid-March 2011 it was decided that the respondent would consider cost-saving measures proposed. Notwithstanding, restructuring and rationalisation within the respondent caused the claimant to be made redundant. It was submitted that the claimant was afforded full trade union representation and equitable procedure with regard to his redundancy and that, therefore, he had no outstanding right to redress under unfair dismissal or redundancy legislation.
In cross-examination on 6 February 2014 MH (general manager of the respondent) was asked about the site-specific nature of redundancy within the respondent. Redundancy was initially intended to be (trade union branch organiser) which stated (under the heading of redundancy) that there was agreement that the grounds for selection for compulsory redundancy for all positions that were to be done away with would be LIFO (last in, first out) and a site-by-site basis across the respondent’s treatment centres.
MH stated that voluntary redundancy was not company-wide and was only for Midleton workers. When it was put to MH that the set agreement was that compulsory redundancies would be site-specific she replied that the respondent wanted voluntary redundancies and then compulsory redundancies. It was then suggested to MH that the respondent could have gone company-wide about voluntary redundancies. MH answered that, in the first instance, the respondent’s first preference was voluntary (redundancy). She did not accept that there had been a departure from policy.
The Tribunal was referred to a 13 June 2011 letter from the claimant and other employees to MH confirming their non-acceptance of the respondent’s recent offer of voluntary redundancies. The letter also confirmed the employees’ “commitment to the well-established principle of <last in, first out> when selecting personnel for redundancy” and recorded the employees’ belief “that any compulsory redundancies to be effected by (the respondent) should be based on the LIFO principle”. The employees stated that “we further confirm our availability to relocate our place of work as provided for in the Terms and Conditions of Employment as issued by (the respondent) or to redeploy within the company” and that they “look forward to our continued employment with (the respondent)” MH confirmed that it had been her decision to implement redundancies in mid-June 2011. She admitted not having replied to all correspondence and simply said redundancy had to be compulsory if there were no voluntary redundancies. MH told the Tribunal that she had been available to meet staff. It was put to her that her evidence was changing and that she had had no meeting with Midleton employees.
The Tribunal was referred to a 14 June 2011 letter from the claimant (and seven other employees of the respondent) recording the employees’ protest that BC (their union representative) was not permitted entry to a meeting on 13 June 2011. The letter pointed out that the employees had not been consulted about a proposed reduced working hour roster and argued that it was “both unfair and unreasonable to demand a response within such a short time on a proposal that was never discussed previously”.
The letter reaffirmed that the signatories believed “that the LIFO principle should apply throughout the Company” (as distinct from just Midleton). The letter concluded:
“We are available for relocation as provided for in our Terms and Conditions of Employment or to redeploy within the Company.
We now call on the Company to suspend the imposed deadline date of 16th June and to allow a greater period of time for consultation and negotiation to seek to find a resolution to the issue.” By letter dated 16 June 2011 she confirmed the claimant’s redundancy. Asked at the Tribunal hearing if the respondent had given a right of appeal, MH replied that the respondent had “a grievance procedure which could let an appeal in”.
Acknowledging that it fell to her to decide redundancies, MH said that she would ask HR to give her employee start dates. It was put to her that the claimant had started on 19 October 2005. She did not accept this saying that an employee who said so had to be mistaken. It was put to her that MG (the employee in question) would say that the claimant was being trained in when she started. MH replied that the respondent had no record of that, that employees did their own timesheets, that payslips were calculated in arrears and that the respondent had to make a start-date decision based on the information available.
Denying that there had been timesheet inaccuracies, MH said that there had been no objection when employees were paid according to their timesheets and that she was satisfied with the dates. MH surmised that MG “may have come in in the latter half of a pay period”.
The claimant’s representative alleged that the claimant had started on 19 October whereas GRN (another employee) had started on 1 November and that the respondent had selected the wrong employee for redundancy. MH replied that she disagreed, that GRN had started before the claimant and that any witness saying otherwise was wrong. When it was put to MH that the claimant had worked 19-21 October 2005 she replied that the respondent’s records did not show that.
In re-examination MH said that the drivers had never asked to meet her. She stated that the respondent did not recognise a certain union (hereafter referred to as IW).
Giving sworn testimony, DS (the respondent’s operations manager) confirmed that no voluntary redundancy applications had been received. He added that there had been “no appetite” for a revised rota and that the drivers had not got back to him after he had spoken to the staff at MH’s instigation.
Under cross-examination DS said that he had been aware of the respondent’s site-specific restructuring but had not been involved in 2008 negotiations. He did not recall having seen employee correspondence. He had to speak to staff on a day-to-day basis. He knew of the (IW) union not recognised by the respondent.
Asked if there had been discussion about company-wide redundancy, DS said that he could not recall. He said that he relayed information and got ideas from employees. They raised voluntary redundancy.
DS confirmed that he had generated an eight-man roster document and said that MH had given him authority to prepare it. However, he said that there was not much interest in an eight-man roster but voluntary redundancy was raised.
Asked about a meeting in Midleton on 13 June 2011 DS was asked at the Tribunal hearing why he had said at the meeting that he wanted people to get back to the respondent “by end of business tonight”. DS said that there had been a need “to get things resolved”. He “needed to see if an eight-man roster was viable”. He could not recall if there had been any issue about company-wide redundancy. DS did not deny that he had only reported back on one suggestion i.e. the roster.
AHN (an employee) was made redundant and re-engaged. There was a vacancy at Kinsale Road. Asked at the Tribunal hearing if the respondent had told AHN of the Kinsale Road vacancy, DS replied that some people would have asked the respondent to keep his or her name on file. AHN and another employee (CNRY) kept in contact. DS did not reply when asked at the Tribunal hearing if he had thought to advise the claimant. He did not deny it when it was put to him that the respondent had e-mailed LB (another employee).
DS said that he had no recollection of the claimant’s start date.
Summary of Claimant’s Case
Receptionist (CG) with the respondent organisation gave evidence of commencing employment with the respondent organisation on the 19 October 2005. On that date she was introduced to the claimant as another new employee. She was allocated the staff number 294 which appears on her payslips and logging in process by (MD). A second witness (CC) recalled meeting the claimant on the 19 October as she was training (CG) that evening. The claimant was accompanied by another driver at the time. A former driver (LG) now retired gave evidence of commencing employment with the respondent on the 1 November 2005. He was allocated staff number 295 for the purpose of payroll. He had no knowledge of the claimant’s commencement date only that the claimant was employed before him. At the time of the redundancy selection he fully believed that he was facing redundancy. On learning of the claimant being made redundant he was surprised and although discussing it with colleagues he never discussed it with management.
JQ a driver at the same site gave evidence of attending a meeting to discuss cost saving measures in the organisation. The issue of redundancies was never mentioned and he was shocked when the first notification was received on the 14 April 2011. Drivers at the site were of the view that they were sold down the river as no alternatives were discussed. He believed there were alternatives available to the respondent including redeployment in the region. Furthermore a driver at another site was out on long term sick leave and JC was due to retire.
The witness recalled the claimant discussing his redundancy notice with him and confirmed that they had discussed the fact that another employee had commenced employment after the claimant. He did not report that to the management at the time.
The claimant gave evidence of commencing employment as a driver with the organisation on the 19 October 2005. On commencing he accompanied another driver as part of his training. MD called to his home to complete a starter sheet on the 1 November 2005 and he was instructed to enter the date of the 2 November 2005 as his commencement date which was the date he first worked without another driver. He entered that date on the instruction of MD. He was assigned employee number 293.
The claimant attended a meeting in March 2011 where employees were informed of the organisation’s financial position. The possibility of redundancies was not referenced at that meeting. He recalled a group being set up to facilitate the process but did not believe it was open to him or other drivers to put themselves forward. He first learned of the possibility of redundancies on the 14 April 2011. He wrote to MH on the 20 April advising her that he was not represented by SIPTU and got no response. A letter dated 24 May from the respondent sought voluntary redundancies and he did not volunteer. On the 1 June the reduced rosters was put to employees which were not accepted. At that time he believed that any compulsory redundancies would not affect him as he was not the last in. On learning of his redundancy in a letter dated 16 June he was shocked. He contacted the IWU and his colleague JQ and recalled discussing the unfairness of his selection. His union wrote to MH on the 18 June on his behalf however the issue of his commencement date he accepts was not referenced in that letter. He accepted that he signed the relevant redundancy forms without raising the issue around his commencement date in order to facilitate the organisation and the redundancy process.
Determination:
Dissenting Opinion.
In dissenting from the majority decision I Owen Wills have concluded that the respondent’s actions were taken in good faith and I reject the claimant’s assertion that the respondent took into account his union membership or the fact that he had claims in front of other forums in determining its selection process.
However considering all the circumstances and the evidence adduced during the hearings and in particular the Unfair Dismissals Act 1977 Sect. 6 (3) (b) as it relates to unfair selection.
The respondent had an agreed procedure and obligation in the case of redundancies to apply fully LIFO (last in first out) on a specific site basis so the question rested on the respondents compliance or otherwise with the agreed procedure.
The respondent’s case was that the claimant started employment on the 2 November 2005 and relied on a ‘starter sheet’ which had been filled in by the claimant and had the 2 November 2005 as the start date.
That the claimant also put the 2 November 2005 as his start date on the T1A form three months after his dismissal.
That the claimant changed his claim during the Tribunal hearings from disputing that the application of LIFO on a specific site basis was in breach of established procedures to claiming the wrong start date was applied.
The claimant’s case was that his start date was the 19 October 2005 and therefore his selection for redundancy was unfair in that it was in breach of agreed LIFO procedures in that another employee LG started after him. Four witnesses presented sworn evidence in support of this claim.
Receptionist CG gave evidence that she clearly recalled that the claimant started on the same day as she did the 19 October 2005 and that she was allocated the staff number 294.
Driver JQ gave evidence that he was shocked when the claimant was made redundant and discussed with the claimant the fact that another employee had started after him.
Driver LG gave evidence that he started on the 1 November 2005 and while he could not give evidence of the claimant’s start date he could say he had started after the claimant and expected to be made redundant, and his staff number was 295.
The claimant AH gave evidence that he started on the 19 October 2005 and was allocated the staff number 293. He also gave evidence that MD called to his home on the 1 November 2005 to fill in a starter sheet and instructed him to enter his start date as the 2 November 2005.
Arising from consideration of all the circumstances and the evidence adduced I am satisfied that the respondent made its decision on the information available at the time, however I am convinced by the direct sworn evidence that the claimant’s start date was the 19 October 2005 (supported by sequence in which the staff numbers were allocated 1- claimant AH 293 2- receptionist CG 294 started 19 Oct. 3- driver LG 295 started 1 Nov. and recorded on pay slips)
So I find that in accordance with the Unfair Dismissals Act 1977 Sect.6 (3) (b) the respondent had in error unfairly selected the claimant for redundancy in the implementation of the agreed procedures and the application of LIFO on a site specific basis.
I am also of the opinion that the actions or lack thereof of the claimant referred to in the respondent’s submissions were a matter for mitigation of any award but could not render the dismissal as fair.
Majority Determination
The majority of the Tribunal are satisfied that a redundancy situation did apply and the only criteria used for the selection process was an agreed procedure which was last in first out on a site specific basis. On this occasion the site was the medical base in Midleton.
Furthermore, the majority of the Tribunal are satisfied that at the time the selection process was applied that the information available to the respondent was that the claimant had a start date of the 2 of November 2005 which was recorded on starter sheets, roster, payslips etc. in support of the respondents selection of the claimant based on the selection criteria used.
It is noted by the Tribunal from the evidence on behalf of both parties that any error in respect of the start date of the claimant was not communicated to the respondent until the 9th of October 2013, being the second day of the hearing of this claim. The claimant failed to bring the error of the start date to the respondent’s attention at the time or immediately upon notification of his selection. Therefore, the majority of the Tribunal must find that the dismissal was fair on the basis that the respondent fairly selected the claimant based on the information available to them at the time.
The claim under the Redundancy Payments Acts, 1967 to 2007 was withdrawn over the course of the hearings.
The majority of the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)