EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Martin Russell UD691/2013
against the recommendation of the Rights Commissioner in the case of:
Aramex Ireland Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. W. O'Carroll
Ms H. Henry
heard this appeal at Ennis on 20th April and 24th June 2015
Representation:
Appellant : Mr David O’Regan BL instructed by
Carmody & company, Solicitors, Peach House, Shannon, Co Clare
Respondent : In Person
This case came before the Tribunal by way of an appeal by the employee (appellant) against the decision of the Rights Commissioner (r-127723-ud-12) under the Unfair Dismissals Acts 1977 to 2007.
Respondent’s Case
The respondent company, established in 1982 is a global provider of comprehensive logistics and transportation solutions. It provides international and domestic express delivery, freight forwarding, logistics and warehousing, records and information management solutions,
e-business solutions, and online shipping services.
The appellant was employed as a business development executive, commencing employment in January 2011. He had previously been employed by another company called Aquaship which the respondent acquired, and his employment transferred along with fourteen other employees of that company to the respondent in accordance with TUPE regulations.
The Tribunal heard evidence from the country manager of the respondent company that the appellant was employed in the company’s Shannon depot and he was in the unique position of being the only business development executive in Shannon. The company also has depots in Cork and Dublin employing a total of seven business development executives. The witness gave evidence that in or around October 2011 the company became very concerned about the Shannon business. A review of the business was undertaken and it was explained to the appellant that significant improvements were required as overall sales and gross profit figures were behind budget. This was severely impacting on the company’s ability to sustain the current structure of the business. The witness met with the appellant in December 2011 and explained the gravity of the situation. The company continued to sustain losses in February, March and April 2012.
As a result of the substantial losses that the company had continued to sustain the witness along with the appellant’s regional manager met with the appellant on 1 May 2012. It was explained that the appellant’s targets were not being achieved and the business was under performing. The costs far outweighed any gross margin, and this was purely unsustainable. It was impossible to keep the appellant’s position open and there was no alternative position available. The appellant was in a unique position and he was informed that it was likely that his position would be made redundant. The depot continued to lose business and the appellant was made redundant on 31 May 2012.
The Tribunal heard further evidence that three employees had been made redundant from the Dublin depot prior to the appellant being made redundant. While the appellant had been employed at the Shannon depot he was not restricted to sales in the Mid-West region. Similarly his colleagues in the Cork and Dublin depots were not restricted to selling within their regions. The company also employs the services of an outside consultant since 2009 who had previously been an employee of the company and had taken early retirement in 2005/2006. It was accepted that the appellant could have carried out this area of work but this former employee had built up his own customer base.
The witness confirmed that he did not discuss the options of short-time or lay-off with the appellant and he was not offered the opportunity to appeal the decision to make him redundant. While he admitted that there were failings in the documentation of the procedures he categorically denied that the appellant was unfairly selected for redundancy.
From May 2011 onwards the claimant reported to the regional manager in Shannon. As a result of the transfer the claimant’s terms and conditions of employment had altered to the extent that his workplace and office was based at Shannon rather than in his residence which had been the case with Aquaship. In acknowledging that the consultant undertook a similar role as the claimant for the company the regional manager stated that neither men shared or competed for the same business. The consultant was engaged with the respondent under a contract for services and his remuneration was solely in the form of commission. The claimant was a salaried employee.
In opting to make the claimant’s position redundant no consideration was given to offering him a reduction in his salary or indeed any other alternative to redundancy. This witness was unable to confirm whether references were made to the company handbook when enacting this redundancy process. He accepted that neither notice nor the nature of the meeting relating to that redundancy decision was conveyed to the claimant. As a consequence the claimant was invited to bring a witness or representative with him when notice of his dismissal was announced. This manager justified the redundancy entirely on “cost factors” and added that the claimant was a “hard worker “.
A current employee of the respondent who was also worked with the claimant in Aquaship told the Tribunal he had no role in the claimant’s termination of employment.
Claimant’s Case
Prior to the transfer of undertaking the claimant carried out his work from his residence and at times from offices in Cork and Dublin. That changed post the transfer when his work station was in an office on the company premises. That office was shared with the outside consultant. The witness added that he also competed for the same business with that person. From January 2011 when he started with the respondent up to his dismissal in May 2012 he had never met any staff from the human resource section. The claimant also stated that neither the country manager nor indeed anyone else in the company told him his job was in jeopardy.
The first he heard of this was at a meeting in early May 2012. According to the claimant the country manager effectively said to him “good night and good luck” on that occasion. The claimant told the Tribunal that he had not been consulted on this issue that no matrix had been presented to him nor had alternatives been offered. He commented that he was capable of performing the job of the consultant. He was shocked to have received this news but felt he had no choice but to sign off on the statutory payment offered.
Determination
It is clear from the adduced evidence and documentation in this case that the respondent was experiencing financial difficulties relating to its Shannon based activities. From the claimant’s point of view the decision to terminate his role and cease his employment there was harsh, sudden, and disproportionate.
When terminating an employee’s employment the onus is on the employer to act in a fair, open and professional manner. However, in this case the respondent behaved in a closed, unfair and less than professional fashion in dealing with the claimant. His input and attitude was not sought, no matrix or comparable analysis was conducted, no alternatives offered and no appeal process was mentioned to him. In bypassing that process alone the respondent’s termination of the claimant’s employment was unfair.
The claim under the Unfair Dismissals Acts, 1967 succeeds and the Tribunal awards the claimant €80,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)