UD143/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                  CASE NO.

Mary Morris

- claimant                                                                                                        

                                                                                                                             UD143/2014

against

Callan Tansey Solicitors

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan BL

Members:     Mr. W. O'Carroll

                    Ms H. Henry

heard this claim at Roscommon on 17th June 2015

Representation:

_______________

Claimant(s) :           Mr Lars Asmussen BL instructed by Mr Sean Ormonde, Sean Ormonde &

Co., Solicitors, Suite 19, The Atrium, Canada Street, Waterford

Respondent(s) :       In Person

Summary of Case

The claimant was employed as a legal secretary by the respondent law firm. She commenced employment in July 1980 working in a full time capacity until 1995. Thereafter, with the agreement of the respondent she worked in a part time capacity until the termination of her employment by reason of redundancy in July 2013.

The Tribunal heard evidence from the Managing Partner of the law firm that the firm has offices in Boyle, Co Roscommon and in Sligo town approximately 48 km away. The claimant worked her entire career in the Boyle office.

The Managing Partner known as (B) gave evidence that in April/May 2013 the firm employed three partners, two solicitors, and eight support staff including the claimant in the Boyle office. Due to the economic downturn from 2008 onwards the partners were obliged to make necessary decisions in relation to personnel to maintain the practice’s long term security. The partners reviewed the cost base and resources and it was against that background that the positions of secretarial staff had to be reviewed. There was a decrease in private client work, conveyancing, probate, and district court litigation. Matters crystallised further when a solicitor known as Mr (H) resigned from the firm in early 2013. He was not replaced and his workload was subsumed by the remaining solicitors. The claimant and another employee known as (MB) worked directly with Mr (H).

The witness gave further evidence that on 1 May 2013 the three partners met separately with the claimant, (MB) and another employee known as (CH) and indicated to them that their positions were under threat, and it was possible that they would be made redundant. Subsequently, three full time positions became available in the Sligo office. Accordingly, on 24 May 2013 the partners met again with the three aforementioned secretaries and they were offered the alternative positions in the Sligo office. They were given time to consider this offer and the claimant, by way of e-mail dated 30 May 2013, stated that she would not be accepting the proposal. The witness then wrote to the claimant by way of letter dated 30 May 2013 confirming that her post was being made redundant. She was paid her statutory redundancy entitlement, her notice entitlement, and outstanding holidays. She sought a reference which was provided to her (copy opened to the Tribunal) and her position has not been replaced.

The Tribunal was not provided with any written memos or notes from the meetings of 1 May 2013 or 24 May 2013. The witness accepted that no indication was given to the claimant prior to the meeting of 1 May 2013 that her position was at risk of redundancy. There was no selection criteria provided to the claimant. He could not confirm if the claimant was made aware of the nature of the meeting in advance of the meeting. He confirmed that that the firm did not seek voluntary redundancies. The witness accepted that the claimant had the longest service of all the legal secretaries but denied that her part-time status was a contributing factor in her selection for redundancy. He confirmed that the other legal secretary, (MB) who worked with Mr (H) was also made redundant. He accepted that the claimant had worked with other solicitors during her tenure of employment and the firm did not apply a last in first out (LIFO) selection criteria for redundancy.

The claimant gave direct evidence that she was employed as a legal secretary since 1980. She outlined her duties to the Tribunal and listed the names of the solicitors to whom she had worked during her tenure of employment. She worked on a full time basis from 1980 to 1995 and thereafter on a part time basis with the agreement of her employer.

The claimant gave evidence that on 1 May 2013 she received a telephone call from a partner in the firm asking her to go to the library for a meeting. She was not informed of the nature of the meeting. She told the Tribunal that three partners were present at the meeting and the Managing Partner (B) told her that her position was being made redundant and her redundancy would become effective from two weeks of the meeting. She gave evidence that she enquired if there were any other options available and (B) replied “no, the decision is made”.

The claimant left the meeting and was in shock. She was the longest serving member of staff and had been given no warning whatsoever of her redundancy. She was not offered the opportunity of having representation at the meeting. She told the Tribunal that no attendance notes were taken at the meeting and she was never provided with any selection criteria. She gave evidence that she was told that she was being made redundant because Mr (H) was leaving the firm. She was never informed of any means by which she could appeal the decision and was offered no alternative to redundancy.

The claimant gave further evidence that during the course of her employment on a part-time basis she had been asked to return on a full time basis on at least two occasions. She declined on both occasions as she was not in a position to do so because of her domestic circumstances. She told the Tribunal that she was offered a full time position in the Sligo office three weeks and two days after she was told that she was going to be made redundant. She believed that the firm was “covering their tracks” by making such an offer. She did not believe this to be a genuine offer. The Sligo office was 48km from her home. It was a full time position, a position she had declined on two previous occasions in the Boyle office. It was not feasible for her to accept this offer due to her domestic circumstances and she believed that it was an unreasonable offer.

The claimant accepted that (B) had outlined the background and the general downturn in business at the meeting of 1 May 2013, including the departure of Mr (H). She confirmed that she e-mailed him on 30 May 2013 declining the offer of the full time position in the Sligo office and did not outline any explanation for declining the offer.

The Tribunal heard further evidence in relation to the claimant’s efforts to mitigate her loss and her efforts to secure alternative employment.

Determination

The Tribunal carefully considered all the evidence and submissions in this case. It noted that the claimant was one of eight secretaries employed in the respondent’s legal practice. The claimant commenced employment with the respondent in 1980 and had the longest service of all the secretaries. Due to the economic downturn the respondent restructured the business. Subsequently, the claimant was made redundant.

The Tribunal found that no meaningful consultation took place between the respondent and the claimant. The respondent failed to give advance warning of the nature of the meeting of 1 May 2013 when the claimant was informed that the decision had been made to make her redundant. The claimant was not afforded an appeal procedure. Furthermore, she was not offered the opportunity of having representation at the aforementioned meeting and at the follow-up meeting on 24 May 2013. There were no written notes or memos of the said meetings. There was no attempt to secure a voluntary redundancy. No consideration was given to an alternative to redundancy, such as a pay cut or reduced hours. The respondent did not consider a last in, first out policy. At the meeting on 24 May 2013 the claimant was offered a full time position in the Sligo office. This was not a viable option due to her domestic situation, and Sligo being 48km from the claimant’s home.

The respondent acted unreasonably in failing to apply objective criteria to the selection of the claimant for redundancy.

The Tribunal finds that the claimant was unfairly selected for redundancy and accordingly unfairly dismissed. The Tribunal awards the claimant the sum of €12,765.06 under the Unfair Dismissals Acts 1977 to 2007. This award is separate and distinct from any redundancy payment already paid to the claimant.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)