UD352/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                       CASE NO.

Stephen O'Doherty                 -claimant

                                                                                                            UD352/2014

against

MCR Outsourcing Limited    -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. Clancy

Members:     Mr T. Gill

                    Ms H. Kelleher

heard this claim at Limerick on 7th July 2015

Representation:

Claimant:        In person

Respondent:    Warren Parkes, Solicitors, Suite 317, The Capel Building,

                        Mary's Abbey, Dublin 7

Summary of evidence:

Preliminary Issue:

The claimant became employed by the respondent company by virtue of a transfer of undertakings. His claim before the Tribunal followed from the termination of his employment by reason of redundancy. The respondent is a licensed employment agency. It was the company's case that by virtue of S.13 of the Unfair Dismissals Act 1993 the respondent company was not the relevant party to be named in the unfair dismissals proceedings.

S. 13 of the Act as amended states:

13.—Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement— 

(a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person

The Operations Manager for the respondent company gave evidence that the claimant provided caretaking duties for Client A at a site in Limerick.

In August 2013 the claimant was provided with a verbal warning by the Operations Manager. The claimant accepted this warning as he had made the mistake of removing the cash float from site.

During September 2013 Client A made serious allegations against the claimant. The allegations were that the claimant was either misappropriating parking fees or that he was allowing individuals to park for free. The Operations Manager informed the claimant that he was temporarily transferred to another site pending an investigation. There was a dispute between the parties as to whether or not the claimant was suspended from his employment. Correspondence ensued from a solicitor on behalf of the claimant in relation to this issue. However, it was the evidence of the Operations Manager that the claimant was not suspended from work.

The Operations Manager met with PM of Client A on 1 October 2013 as part of the investigation. He was not satisfied with the evidence provided at this meeting in relation to the allegations. The claimant was informed by letter dated 21 October 2013 that the investigation was concluded and that there was insufficient evidence to warrant invoking the disciplinary process. The claimant was asked to notify the Operations Manager when he would be fit to return to the client’s site. The claimant was reluctant to return as he believed Client A was attempting to discredit him due to an ongoing personal injuries claim. It was the claimant’s evidence that he felt unfairly targeted on a number of occasions by the respondent company and Client A. During cross-examination he stated that the waiver release document for full and final settlement of the personal injuries claim was signed under duress in 2012.

Subsequently, Client A wrote to the respondent company on 25 October 2013 stating that a decision had been taken to terminate the caretaker services on site, thus ending the contract with the respondent company. The Operations Manager did not consider the allegations against the claimant and the cancellation of the contract to be connected. The claimant returned from sick leave to find that his employment at Client A’s site was ending. He wrote to the Operations Manager to find out if there were alternatives available to him or if his position would be made redundant. The Operations Manager responded that he would endeavour to find all the staff from Client A’s site suitable, alternative employment but that if this was unsuccessful the claimant would be selected for redundancy.

The respondent company had only one other client site in Limerick but the claimant had previously raised the issue that this location was unsuitable for him. One employee transferred from Client A’s site to this location. Due to the fact the claimant had previously raised an issue about working at this location the Operations Manager did not offer him work there. It was the claimant’s evidence that this option should have been offered to him as an alternative to redundancy. The claimant’s other colleagues transferred to work in Dublin. The claimant was the only employee whose position was redundant. The claimant gave evidence of loss and his efforts to mitigate it.

Subsequently, the respondent company provided a cleaner two days a week to Client A at the same site. It was the claimant’s case that had he been offered this role he would have accepted it. He believed the cleaning role was similar to his caretaking role as he undertook cleaning as part of his duties. He also would have considered work in Cork as an alternative to redundancy.

Determination:

Notwithstanding S.13 the Tribunal is satisfied that a genuine redundancy situation existed in relation to the claimant’s position. The claimant failed to demonstrate that he was unfairly selected for redundancy in circumstances where he had indicated that he would not work in the only other client site the respondent company had in Limerick. In all the circumstances the claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)