EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Aaron Dolan – claimant UD762/2014
against
Bruscar Bhearna Teoranta T/a Barna Waste – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr. D. Morrison
Mr T.J. Gill
heard this claim at Sligo on 31st August 2015
Representation
Claimant: Mr John McShane of Johnson & Johnson Solicitors,
Ballymote, Co. Sligo
Respondent: Mr Stephen Hanaphy BL instructed by Joanne Hyde of Evershed Solicitors,
1 Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case
The financial controller gave evidence. The business was profitable in the 2000s and was expanding into the areas of recycling and composting. The recession resulted in financial difficulties and the business went into Examinership in April 2013. Cost cutting measures were introduced. There were redundancies and pay cuts.
A new investor met with staff to outline that restructuring would be needed. The claimant worked in sales and customer service. It was decided to reduce the employees in this area from 13 to three. The HR manager wrote to these 13 employees on 29 August 2013 telling them their positions would be redundant from 25 October 2013 and inviting anyone interested to apply for one of the 3 customer service representative posts. The claimant did not apply. Only one of the 13 relevant employees applied for the new post. He was interviewed, found suitable and appointed.
Subsequent to the termination of the claimant’s employment, the local authorities introduced new regulations relating to waste disposal and as a result the respondent needed more customer service representatives for the period December 2013 to March 2014.
The customer service representative post required a C1 driving licence. The claimant did not have a C1. If he had expressed interest in the new position he would have been given time to undertake the necessary training and to take the test. The financial controller accepted that no selection procedure was used and neither was a selection matrix applied. The 13 employees were given the option of applying for one of 3 new posts or accepting redundancy.
The HR manager gave evidence. The claimant was a good employee and he worked hard and completed his tasks satisfactorily. The HR manager did not participate in the decision to make people redundant. The HR manager met the claimant and his colleagues and gave them the letter giving notice of redundancy. The claimant asked questions relating to how customer service would continue.
The respondent did have a selection process for redundancy. If it had been required a selection matrix would have been used. The requirement of the business came first.
The HR manager wrote to the driving test centre seeking to have the claimant’s driving test expedited. He did not extend the claimant’s time to obtain a C1 licence because the claimant showed no interest is the new posts.
Claimant’s Case
The claimant gave evidence. He worked in customer service. In 2012 he was put on a 3-day week and this resulted in a backlog of work on Mondays. The 3-day was followed by a pay cut. He was told that the reason for the redundancies was cutting the sales representatives.
The HR manager gave him the letter telling him of the proposed redundancy. He though he had asked about a last in first out approach. He expected to be kept on. The claimant did not apply for one of the customer service representative posts because he did not have a C1 licence. Nobody told him the time would be extended.
The claimant established his loss.
Determination
The Tribunal carefully considered the evidence adduced in this case. The respondent was sought the protection of an examinership in 2013. This is an indication of the financial difficulties it was operating under. To enable the business survive costs had to be cut.
The claimant was one of 13 employees working in sales and customer service who were put on notice of redundancy on 29 August 2013. The 13 employees were also invited to apply for 3 positions as customer service representatives.
The Tribunal accepts that the respondent was faced with serious financial difficulties and needed to take action to address the situation. There was however an onus on the respondent to act in a reasonable and fair manner. The respondent’s Employee Handbook provides for the use of a ‘selection matrix’ or last in first out in the event of a redundancy situation arising.
In this case the Tribunal finds that a redundancy situation existed, however the 3 new positions were similar to the point of being almost identical with the 13 existing roles. Accordingly it would have been appropriate for the respondent to have used a selection procedure to decide who would be made redundant and which employees would be retained.
The respondent’s failure to use any selection procedure, either as outlined in the Employee Handbook or other suitable procedure rendered the termination of the claimant’s employment unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is, in all the circumstances, awarded the sum of €7,500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)