EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Parlour Catering Limited - appellant
TU64/2013
against the recommendation of the Rights Commissioner in the case of:
Kevin Hession - respondent
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. W. O'Carroll
Ms H. Henry
heard this appeal at Galway on 30th April 2015 and 9th June 2015 and 24th July 2015
Representation:
Appellant : Mr Michael O’Connor B L instructed by C.P. Crowley & Co, Solicitors,
Augustine House, Merchants Road, Galway.
Respondent : Mr Shane MacSweeney, MacSweeney & Co, Solrs,
Lismoyle House, Merchants Road, Galway
This case came before the Tribunal by way of an appeal by an employer against a recommendation made by a Rights’ Commissioner reference: r-132387-tu-13 under the Protection of Employees on Transfer of Undertakings Regulations, 2003
Appellant’s Case
The appellant runs a hotel in Co Galway. It’s a family run business and one of its directors and secretary is the daughter of the former proprietor who worked here since 1999. She confirmed that the respondent also worked there as a chef “on and off” from 2004. By 2011 and up to June 2012 he reported for working duties on a part time basis mostly on Sundays. In October 2012 the hotel closed and the respondent was presented with an RP9 form.
The following month the hotel reopened as this director and an accountant decided to continue trading. The director told the Tribunal that due to her inexperience in management she needed assistance in running this concern. She wanted to retain as many of the current employees as possible but by early 2013 three voluntary redundancies were enacted. Those redundancies were implemented following a general meeting of staff attended by the witness. Those not present, which included the respondent, were furnished with a memorandum addressing the contemporary situation in the hotel.
Around that time the appellant reduced the working hours of the respondent and also recruited the services of another chef. Subsequent to this development further restructuring was needed and this entailed a compulsory redundancy. At the time the appellant employed three chefs one of whom was deemed surplus to requirements. Acting on certain criteria, the witness decided that the respondent’s position was to be made redundant. As a consequence of that decision, this director met the respondent in early March and informed him that his employment was being terminated and that he was not required to work his notice period. Her decision to cease with respondent’s services was based on her belief that of the three chefs he was the most recent recruit, having started in June 2012.
The Tribunal heard further evidence from (SH) that he was hired as a consultant by the appellant hotel in January 2013. He is a qualified chef, but has previous experience in all aspects of hotel management. He listed to the Tribunal the names of the previous hotels in which he had worked. Following his appointment as a consultant he worked directly in all areas of the hotel including the kitchen area where he worked as a chef. He attended management meetings with the hotel owner and the accountant. The hotel was loss making at the time and consequently cost savings measures had to be introduced. Labour costs which were running at 48% were reduced, new reduced prices were agreed with suppliers, and over a period of time business improved.
The witness gave evidence that in his role as a consultant he worked as a chef when required as he did in all areas of the hotel. He denied that his role was similar to the respondent’s position (as a chef) as he had a much broader range of responsibilities. The changes that he introduced were successful and the hotel is now a profitable business. He has since taken over the role of head chef and is currently employed in that position. However, he still continues to carry out other roles in the hotel. He told the Tribunal that he was not involved in the decision to make the respondent redundant. The redundancy emanated from the restructuring of the business which was necessary to make it a profitable business.
The next witness (FM) gave evidence that he is a chartered accountant and he was asked for advice by the hotel owner in October 2012. He told the Tribunal that there was no certainty that the business, which had closed in October 2012, would re-open. He reviewed the financial position of the business and advised the owner that if certain targets were met and gross profit margins were improved then the business could be viable. In essence, the hotel could continue if industry benchmarks were achieved. The hotel re-opened on 16 November 2012 and the witness provided weekly key performance indicators to the owner. He gave evidence that following the re-opening, comparative figures for the months of December 2012, January 2013 and February 2013 with the same months for the previous year showed a decline of 21%, 27% and 40% respectively in the business. Wage costs which were running at 48% were by far the largest overhead. Immediate action was required as the business was losing €280 per day and a decision was made to make the respondent’s position redundant. He stated that the respondent was selected for redundancy in a fair manner on a last in first out (LIFO) basis.
The witness gave further evidence that prior to the appointment of (SH), the owner of the hotel was floundering in her position and it was clear to him that she needed support in the form of a “captain”. (SH) was hired as a consultant to fill that position. He told the Tribunal that (SH) brought knowledge, leadership and professionalism to the hotel and had a huge impact on the overall business. He changed the strategy of the business, improved customer service and improved the morale within the hotel. He brought much more to the business than just working as a chef. He mentored the owner in a struggling business and has made a massive contribution to the change of management structure in the hotel. As a consequence, the hotel has made savings far in excess of (SH’s) fees and wages have now reduced to 42% and gross profit margin has increased from 62% to 67%.
Respondent’s Case
The respondent gave evidence that he has over 30 years experience working as a chef for a number of different employers. He worked for the respondent intermittently over a number of years and from June 2012 onwards was working 47 hours per week for the respondent. He gave evidence that the chef of any given day operated as the head chef including himself. He gave evidence that as head chef he was involved in menus preparation, HACCP regulations and checks. He told the Tribunal that menus were all up to date menus and were not “old hat”. He gave evidence that the food was always good and he was never informed of any issues in terms of the food.
He gave evidence that when (SH) was hired in January 2013 he (the respondent’s) hours were reduced to 25 hours per week. This reduction in hours was imposed without any discussion. He told the tribunal that (SH) did the exact same work as him. Both of them wore chef’s clothing. He did not attend a staff meeting in February 2013 as he had a medical appointment but accepted that he was given a note of the meeting which was given to all employees.
The respondent accepted that the company had to introduce cost saving measures and was aware that voluntary redundancies were being sought. He did not dispute the fact that some employees were made redundant but he did not seek voluntary redundancy. He did not wish to be made redundant but ultimately he was made redundant in March 2013 without any consultation or discussion. He gave evidence that he was replaced by (SH) in his position as chef.
The Tribunal heard further evidence in relation to his efforts to secure alternative employment and he is currently employed as a chef earning €450 per week.
Determination
The Tribunal carefully considered all of the documentary and oral evidence adduced at the hearing. The Tribunal finds that the respondent was dismissed without any proper consultation or discussion in March 2013, approximately four to five months after the claimant took over the business. There was a dispute between the parties as to the role taken on by (SH) but there was clear evidence provided that he is carrying out the duties heretofore carried out by the respondent. The Tribunal does accept however that (SH) may well be carrying out extra duties not carried out by the respondent.
The Tribunal upholds the recommendation of the Rights Commissioner and awards the respondent the sum of €8,300 under the Protection of Employees on Transfer of Undertakings Regulations 2003.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)