EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Romans Korolovs -appellant
UD873/2014
against the recommendation of the Rights Commissioner in the case of:
Pembroke Distributors Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr C. Lucey
Mr M. O'Reilly
heard this appeal at Dublin on 29th July 2015
Representation:
Appellant: Mr. Michael McCormack B.L. instructed by Hennessy & Perrozzi, Solicitors,
Burgundy House, Forster Way, Swords, Co Dublin
Respondent: The Chief Executive Officer and a director of the company.
Background:
This case came before the Tribunal by way of an employee (the appellant) lodging an appeal to a Correcting Order issued by a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (reference: r-124404-ud-12/JT). The appeal was lodged within the specified time limit and the Tribunal was satisfied it had jurisdiction to hear the case. The appeal lodged regarding the original Recommendation was lodged outside the stipulated time limit (UD174/2013 refers).
Summary of evidence:
The Tribunal provided a translator for the hearing.
The appellant’s employment was terminated by the respondent company by reason of redundancy on 30 April 2012. The appellant worked for the respondent company as a merchandiser of vending machines based at various customer locations. In 2012 the company suffered a significant downturn in business. As a result, a number of cost-cutting measures were implemented including wage reductions, overhead reductions and the non-replacement of departed staff. Unfortunately these measures were insufficient and the company was faced with implementing further measures.
Three consultation meetings were held with staff and the company offered a three-day week to all staff as an alternative to implementing redundancies as it was the company’s preference to retain staff. It was the evidence of the witnesses for the company that they believed the consensus of all staff was required and that this was not forthcoming at the consultation meetings in relation to the option of a three-day week for all staff.
As a result of there being no consensus to this option, management considered redundancies in the context of skillsets, which fell mainly into two areas, merchandisers and engineers. A decision was taken to reduce the number of merchandisers using the selection process of last in, first out. On that basis the appellant’s position was selected.
The company had previously made a position redundant in September 2011 but on that occasion last in, first out was not utilised as the employee was the sole employee on a site where the contract with the customer was due to cease.
During cross-examination it was put to the director of the company that Employee A volunteered for redundancy in March 2012 and was willing to accept redundancy based on the appellant’s length of service which was less than his own. The director replied that the company could not overwrite the law on Employee A’s statutory entitlements. In addition management were concerned that should further redundancies be required at a later stage, a clear transparent selection process of last in, first out was in place. Indeed further redundancies were required as the company had 18 employees at the time the appellant’s position was selected for redundancy, whereas, it has 10 employees.
The appellant was on leave at the time of the last consultation meeting but the CEO telephoned the appellant when he returned from leave and advised him as to the contents of the meeting. In addition a letter dated 28 March 2012 issued to all staff informing them of the outcome of the meeting. During cross-examination it was put to the director that the appellant’s solicitor sought an appeal of the decision to select the appellant’s position but an appeal was not provided.
Employee A gave evidence on behalf of the appellant that he recalled management putting forward three solutions to the difficulties the company faced: redundancies, a three-day week or a wage reduction. He approached the company volunteering for redundancy. During cross-examination Employee A confirmed that his employment terminated in February 2013 in circumstances where he was prohibited from driving since December 2012, a fact which was not known to the company. However, he had continued to drive as part of his employment without holding a valid driving license until he was stopped by An Garda Siochána. The court proceedings relating to this matter were held in June or July 2012. He confirmed that at the time of the consultation meetings he was aware that the court case was pending.
It was the appellant’s evidence that he first became aware that redundancy was a possibility during the first two consultation meetings. He was not present for the third meeting as he was on annual leave and on his return he was informed that his position was selected for redundancy. He did not think the company consulted with him properly and if given the opportunity he would have suggested alternatives to redundancy such as a reduction in working hours. The appellant gave evidence of his financial loss and his attempts to seek work stating that he ceased looking for new employment after one year. He subsequently commenced a full-time college course in September 2013 which continued to May 2015.
Determination:
The respondent company in this case meant well and carried out its duties to the best of its abilities. Nevertheless there was a lack of procedures: the company does not have a specific appeal procedure in place, no alternatives or suggestions for alternatives were offered to the appellant, he was not accompanied at any of the crucial meetings or advised in relation to that issue. The last consultation meeting was held in his absence and should have been postponed pending his return from annual leave. Accordingly, the Tribunal finds that there was an unfair selection for redundancy constituting an unfair dismissal. However, the Tribunal is satisfied that a genuine redundancy situation existed and the company acted in good faith to obtain an acceptable solution to the difficulties it faced and was right to operate the last in, first out principle. In the circumstances of this case the Tribunal find the appropriate award to be €6,000 over and above the sum of redundancy payment already paid to the appellant. The Tribunal upsets the Rights Commissioner Recommendation (reference: r-124404-ud-12/JT).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)