EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Joanne Dicker RP710/2014
- claimant UD1410/14
against
Total Materials Handling Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr M. Noone
Mr. J. Dorney
heard this claim at Dublin on 6th October 2015.
Representation:
Claimant: Ms Helen O’Sullivan BL, instructed by Mr Seamus Whelan, Carvill Rickard & Co, Solicitors, Watermill House, 1 Main Street, Raheny, Dublin 5
Respondent: Ms Marie Gorman BL instructed by the respondent
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is a distributor of forklift trucks and warehouse handling equipment and has been in business for twenty four years. It now has a workforce of seventeen employees. JG is Managing Director and his wife CG also a Director works part-time.
The claimant held the position of office administrator. Part of her role entailed reception duties and accounts. She worked Monday to Thursday 8.30 to 4.30 and 8.30 to 4.00 on Fridays with an hour’s lunch break and was paid for a 40 hour week. JG had no issues with the claimant’s performance during her tenure.
In or around the middle of May 2013 JG made the claimant aware of the company’s intention to employ a new person to assist with the accounts side of the business. On 3rd June 2013 the claimant moved office and reported to D, Service Manager.
Due to the huge increase in business and to improve the overall efficiency of the administration side of the business two new roles were created, a part time position in Accounts (3 day week) and a Service Administrator. The claimant’s position was being made redundant. On 21 March 2014 JG offered her the new position of Service Administrator. Her salary would remain the same however her hours of work were extended to 5.00 pm in line with the hours of the Service Department and her lunch break was reduced to half an hour. Her workload would be reduced but she would remain on the same salary. At this time the claimant did not express an interest in the accounts position. The claimant was absent on sick leave for three weeks and returned to work on 14th April 2014.
Following a meeting with the claimant on 14th April 2014 she emailed JG indicating that she was happy to accept the new role but would like to keep her existing working hours. Her existing role was being made redundant and the claimant enquired about the redundancy proposal.
On 16th April 2014 JG informed the claimant that her position was being made redundant. He needed clarification from the claimant if she was accepting the new position of Service Administrator. As the claimant had decided not to avail of the new position JG told the claimant to return home and to leave back the office keys. By letter of the same date JG wrote to the claimant and enclosed an RP50 form setting out the claimant’s statutory redundancy entitlement which was to be paid on 14th May 2014.
On foot of letter received from the claimant’s solicitors, JG withdrew the offer of redundancy. He felt intimidated by the correspondence received from the claimant’s solicitors.
JG said the claimant could have advanced to the Service Manager position in the future within the company if she had accepted the new position. He had always wanted the claimant to remain working in the company as she was an asset to the company.
Claimant’s Case:
The claimant was employed as an accounts/service administrator and commenced employment in late June 2004. She worked from 8.30 to 4.30 Monday to Thursday and 8.30 to 4.00 on Friday. Her hours of work suited her as she had two children. The respondent was aware that she had children and had to pay for childcare. She reported to JG and in his absence she reported to CG. She had a good working relationship with the owners until she encountered difficulties with CG regarding a medical card she had received. When the claimant discussed her tax concerns with CG, following the claimant’s receipt of the medical card, CG became irritated and annoyed. The atmosphere in the office changed after that.
The offer of the new position of Service Administrator with her hours extended until 5.00 p.m. did not suit the claimant. She trained in the new part time Accounts employee.
Following a three week period of sick leave the claimant returned to work on 14th April 2014. JG told her if she did not accept the new position he would need to make her redundant. The claimant wanted to remain working in the company. It did not make sense to reduce her workload and increase her hours of work. She had been told it would be a statutory redundancy package. On 16th April 2014 the respondent wanted an answer from her. He became irritated and the claimant was taken aback. She had tried to come to an arrangement with the respondent. She did not think to negotiate financially with the respondent. She was told to leave her keys on the table that day and to leave and that she would get what she was entitled to in the post. She expected to receive a redundancy payment.
Some two to three weeks later the claimant secured alternative employment.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this hearing. Due to restructuring within the respondent company the claimant’s position was made redundant. The claimant was offered an alternative role with a finish time of 5.00 p.m. This was not acceptable to the claimant. The Tribunal is satisfied that a genuine redundancy situation existed within the respondent company.
The Tribunal finds that the claimant is entitled to a redundancy lump sum under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:
Date of Commencement: 28th June 2004
Date of Termination: 14th May 2014
Gross Weekly Wage: €716.80
It should be noted that a statutory weekly ceiling of €600.00 currently applies to payments from the Social Insurance Fund.
This award is made subject to the claimant fulfilling current social welfare requirements in relation to PRSI contributions.
As claims under the Redundancy Payments Acts, 1967 to 2007 and the Unfair Dismissals Acts, 1977 to 2007 are mutually exclusive, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)