UD1442/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                      CASE NO.

Patricia Murphy         -claimant

                                                                                                           UD1442/2013

against

Trudies Catering Kitchen Limited     -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr N.  Russell

Members:     Mr J.  Browne

                     Ms S.  Kelly

heard this claim at Wexford on 26th February 2015

Representation:

Claimant:        Mr. Eric Furlong, Coghlan Kelly, Solicitors, Trinity Chambers,

South Street, New Ross, Co Wexford

Respondent:    Management Support Services (Ireland) Ltd, The Courtyard,

                        Hill Street, Dublin 1

Summary:

The respondent company manufactures catering products for distribution in the south-east.  The claimant was employed primarily as a driver for the respondent company from September 2006 to September 2013.  It was the respondent’s case that the claimant requested a redundancy payment and left the employment voluntarily.  This was disputed by the claimant.

It was common case between the parties that the claimant initially worked five short days per week but due to family commitments she requested in May 2007 to alter this to three long days per week.  The director of the company facilitated this request.  The claimant usually worked the New Ross/ Waterford route.  Due to a downturn in business the company decreased the claimant’s hours to two days per week in January 2013.

It was the claimant’s evidence that she voiced her opinion in January 2013 that she could not afford to be reduced from three days to two days.  She offered to train on her own time on another route.  The hours of all the employees were reduced at that time with the exception of Employee J although the claimant had longer service than he had.  The claimant refuted the argument that a factor in this and the retention of Employee K was the fact that he had a “C” license stating that the company did not own a rigid truck at any time from 2006 to 2013.  At no time was it mentioned to her that Employee J held a “C” license and she did not.  It was the claimant’s evidence that her unfair selection for redundancy began from this time and continued from the time that she was placed on lay-off and Employee J was not.

Due to a reduction in a significant contract the employees were placed on protective notice on 24 April 2013.  The claimant was subsequently placed on lay off effective from 13 June 2013 and was provided with a reference during the lay-off detailing the current situation of the company at that time.  Initially it was expected that the lay-off would continue for three months but the company was in fact in a position to offer work to the claimant commencing on 22 July 2013 as the company had secured new contracts.  Unfortunately, due to an injury sustained by the claimant she was not fit for work.  Had the claimant been in a position to return to work at that time the director stated that the claimant would have been returning to train on the Cork route.  The offer of work consisted of one long day and two shorter days. 

It was the claimant’s evidence that when placed on lay-off in June 2013 she accepted that there was a downturn in business at that time.  However, the claimant believed that Employee J should have been placed on lay-off rather than her and she raised this with the director at the time citing her longer service as the reason.  The claimant offered to train on his route on her own time.  In addition to this the claimant noted that she had additional skills as she had experience and training in the catering unit also. 

On 22 September 2013 the claimant submitted a medical certificate stating she was fit to return to work.  The director of the company stated in evidence that by that time the company had little work to offer the claimant.  There were a number of discussions between the claimant and the director of the company around that time and there was a conflict between the parties in relation to some of the content of those discussions. 

It was the evidence of the director of the company that she telephoned the claimant and explained to her that there had been a fall-off in business due to the bankruptcy of a number of customers.  The director stated in evidence that she offered the claimant a return to work but on 14/16 hours over three days but the claimant was seeking to return to work on 22 hours.  The other director was currently carrying out those hours but for personal reasons it would have suited the director for the claimant to carry out this work instead.  It was the director’s evidence that the claimant subsequently requested a redundancy payment on the basis that the hours offered were not financially viable for her. 

A letter dated 23 September 2013 was provided to the claimant as the director knew that she could only provide the claimant with 14/16 hours and that the claimant was therefore entitled to claim a redundancy payment.  It was the director’s evidence that the claimant requested this letter for social welfare purposes.  The claimant subsequently requested a redundancy payment on 1 October 2013 on the basis that the hours offered were not financially viable for her.  The director had hoped to be able to offer the claimant more work.  The company had 7 drivers, this initially reduced to 5 drivers and currently there are three drivers. 

It was the claimant’s evidence that she did not request a redundancy payment and that the offer of 14/16 hours work was not made to her.  It was the claimant’s evidence that when she telephoned the director in September stating that she was fit to return, the director said that she would have to “look into it” as there was not much work.  The claimant refuted that she requested a redundancy payment.  The director said she would talk to the accountant and revert to the claimant in due course.

The claimant stated she was genuinely devastated to then receive the letter dated 23 September 2013 outlining that her employment was to be terminated by reason of redundancy as she felt that “something would be sorted out” and she had reminded the director of the issue she had with Employee J continuing to be given hours.

It was put to the director during cross-examination that the employee handbook provides that, all else being equal, the policy of last-in, first out would apply to a redundancy situation.  The claimant had the third longest service and it was agreed that Employee J had less service than the claimant.  The director accepted that the claimant had raised the issue of Employee J with her in January 2013 when her hours were reduced.  The director told the claimant at this time that it was her route and Employee F’s route that were affected by the loss of business.  However, upon further cross-examination she accepted that while the volume of deliveries to premises on the claimant’s route had decreased, the number of stores had not.   It was accepted that the claimant did offer to train for free on Employee J’s route.  Employee J remains as a driver in the company to date and the director outlined that the fact he holds a “C” license is one of the reasons he was retained as the new contracts required a “C” license.

In reply to questions from the Tribunal the director stated that a solicitor completed the T2 form which stated that the company informed the claimant in September 2013 that due to a loss of business her position was being terminated.  The director accepted she signed the T2 form but appeared not to have read the contents of it

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

Determination:

The Tribunal is satisfied that a redundancy situation existed in the respondent company in September 2013.  The evidence of the respondent company that the claimant asked to be made redundant is not accepted by the Tribunal.  From the letter of the 23 September 2013 to the claimant and from the contents of the respondent’s T2 as filed, it is abundantly clear that the claimant’s employment was terminated by the respondent.

The claimant’s case is that she was unfairly selected for redundancy so that the termination of her employment amounted to an unfair dismissal.

The employment of the claimant was governed by the terms of her contract dated the 19 December 2012 (her employment actually commenced on the 27^th September 2006) and the provisions of the company handbook referenced in the said contract of employment.  Paragraph 3.10 of the employee handbook clearly provides that, all else being equal, the policy of last-in, first out would apply in a redundancy situation.  The paragraph envisages that over-riding criteria would be the requirement to retain key staff.

The claimant had longer service as a driver than did Employee J who started after her.  The director of the respondent company advised the Tribunal that Employee J was seen as a key member of staff who was retained because he held a “C” driving licence which the claimant did not have.  None of the documentation referable to the period of redundancy made any reference to this being a factor and it was the uncontested evidence of the claimant before the Tribunal that, when she questioned why Employee J was being preferred over her, no explanation was forthcoming and no mention was made of Employee J holding a “C” Licence.

It seemed to be suggested by the director of the respondent before the Tribunal also that the reduction of work was on the claimant’s route and that she was naturally the driver to face redundancy.  However, cross-examination of the respondent’s principal witness undermined the evidence of a significant reduction in work on the claimant’s route.

Further, it is the Tribunal’s view that the “pool” of employees falling to be considered in the event of there being a redundancy in a driver’s position was all of the drivers in the respondent’s employment.

Applying the contractual terms that governed the claimant’s employment she should not have been selected for redundancy.  In the circumstances it is the finding of the Tribunal that the claimant was unfairly dismissed having been unfairly selected for redundancy.

By way of compensation, the Tribunal awards the claimant the sum of €7,500. By way of clarification, the Tribunal confirms this award to be over and above the sum already received by the claimant, by way of “redundancy payment.”

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)