EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Karen Brennan UD1174/2014
-Claimant
against
Homecare Medical Supplies
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. M. Gilvarry
Members: Mr. T. Gill
Mr. T. Gill
heard this claim at Castlebar on 9th February 2016
Representation:
Claimant: Mr. Charles Gilmartin, Gilmartin & Murphy,
Solicitors, Main Street, Kiltimagh, Co Mayo
Respondent: Mr. Ronnie Lawless, Ibec, West Regional Office,
Ross House, Victoria Place, Galway
Respondent case:
The Tribunal heard evidence from the general manager (MC) of the Respondent. He explained that the Respondent distributes medical devices to the healthcare sector. The devices or items are beds mattresses wheelchairs, gloves wipe etc. they also repair and recycle beds and wheelchairs. In latter years towards the end of 2011 the Respondent secured a national contract and they had a major expansion. Many of the employees in the company were promoted and the Claimant was one of those. The Claimant had been in a service admin role and was promoted to a more managerial role. The Respondent had 70 employees and they took on another 90 employees.
In 2013 the Respondent got into some difficulty with the HSE and the HSE was aggrieved. The Respondent sought external help of management consultants to give them help with management. They transformed their operations to “lean thinking and technology”. In the summer of 2013 the Respondent engaged with the HSE regarding an extension of the contract until 2014.
Before these talks there was an event in the Claimant’s employment. An e-mail dated March 2013, authored by (JR) was opened to the Tribunal:
“In light of the changes and continuing challenges in the service department I recommend that (the Claimant) be moved from her Supervisory position and given a less responsible position and be retained at her current salary of €35k and this would allow her time and space to apply for other supervisory positions as the (sic) arise in the organisation. This step should be taken because of (the Respondent’s) recognition of her previous dedication and hard work despite the fact that she was unsuitable for the role as Service Supervisor.
I hope that this recommendation meets with your approval and if you wish to discuss further please feel free to give me a call.”
So they moved the Claimant from a supervisory role to another role. The other role would have been €25k but they took the advice of JR to retain the Claimant’s salary at €35k. They had hoped that in the future that the Claimant would apply for a role that had less stress.
The witness explained that after they spoke with the HSE, they had to make redundancies. They had to make 90 positions redundant. Another company was to take on the contract and many of the employees obtained employment with the company that took over the contract.
The witness explained the various measures that they took regarding redundancies and that they proposed to “re-focus jobs”. Documents and diagrams were opened to the Tribunal. The witness explained that the company decided to create new positions / new roles. This was to re-organise / streamline the work. Any of the employees could apply for the new positions.
An e-mail dated 17th June 2014 from the Claimant to MC of the HR department was opened to the Tribunal:
“Following the meeting on 11th June 2014 where I was informed that my position within (the Respondent) is being made redundant.
I would like to advise you of my current position, I will not be applying for the alternative positions you advertised. I do not think that it is fair that I should have to apply and interview for a new position. These positions are not equal to my current position. The procurement admin position has a salary of €10000.00 less and I do not wish to apply for the procurement supervisor position as I am not currently a supervisor and I do not want a promotion. In order to stay on the same rate of pay I would have to apply for the supervisor position. I will happily accept the procurement admin position at my current rate of pay - €35,000.00 & my existing terms and conditions.
Can you please send me a copy of my contract.”
They felt that the Claimant was not engaging and that the Claimant wanted to keep the role that she had.
He and a colleague (LW) from the HR department me the Claimant on a few occasions. A document (author =LW) dated 3rd July 2014 was opened to the Tribunal:
“Met with (the Claimant ) and MC. (The Claimant) was asked for her decision in relation to the alternative employment, She produced a draft e-mail refusing the alternative employment and sent the e-mail on to me after the meeting, She asked when her position ceased to exist. (MC) advised it was an indefinite time span as the process was ongoing, The new positions had been filled. We advised (the Claimant ) that we would get back in contact with her today with the company’s response.”
The witness explained that most of the employees applied for the new positions, they were disappointed that the Claimant did not apply for any position and “their hands were tied”.
In cross-examination the witness explained that the Claimant could apply for all of the jobs, that all jobs were applied for including inventory manager position, the Claimant did not apply for that job. The Claimant did not engage in the process, and “that is the problem here”.
The Tribunal heard evidence from LW from the HR department. She explained that in relation to the Claimant’s correspondence in that she would not be applying for a position, it meant that it left the Claimant’s position at a “standstill”. She replied to the Claimant’s correspondence.
An e-mail from LW to the Claimant dated 17th June 2014 was opened to the Tribunal. The e-mail was in reply to the Claimant’s e-mail of 17th June.
“Thanks for your e-mail. We note its contents, Please be advised that if you don’t apply for a new position, you will be offered alternative employment. I will forward a copy of your terms and conditions of employment as requested. If you need clarification on any of the above points please feel free to contact me.”
She and another met with the Claimant on an occasion and on a further two occasions.
Document dated 07th July 2014:
“Met with (the Claimant) and (MC) Presented (the Claimant ) with redundancy letter and redundancy calculation. (MC) confirmed that (the Claimant ) had expressed an interest in continuing as a purchasing administrator but as the position ceases to exist, and that she didn’t apply for any of the new positions and wouldn’t be accepting alternative employment she has put herself in a difficult position. The company had been left with no other choice but to make her redundant. She asked if we wanted her to finish up today. I confirmed that we are giving 2 weeks’ notice form today but that we were proposing that she finish today on full pay up to the 21st July 2014. (the Claimant ) agreed and asked if the meeting was over and we said yes. This was carried out on the interest of both parties and to prevent any further discomfort or stress.”
On the last meeting they met with the Claimant and a letter dated 07th July 2014 was opened to the Tribunal. The letter outlining the outcome of the meeting/ the process. The letter outlined that as she did not apply for position/s and refused a positon that her job was redundant. It outlined her redundancy lump sum payment and her notice payment.
Claimant’s case:
The Tribunal heard evidence from the Claimant. She commenced in the Respondent in 2010 in a service admin position. She was promoted to a service supervisor position on €25k but her manager, who was new, obtained a salary of €30k for her. So she received a new contract. Ultimately her pay was increased to €30,000.00 per annum.
Her workload was “huge” and she worked 6 to 7 days a week sometimes working 16 hours a day. She “put everything into work” she “loved her work” and brought work home. She did have a discussion with (manager) and she was told that things would improve. He thanked her for working long hours.
She did meet JR who told her that she was being re-assigned. She was re-assigned and she felt “Completely heartbroken” because she felt that if she was not doing her job then she should be told and because she loved her job. The women who had reported to her had not been told that she was no longer their supervisor. She had been on 24 hour call and had been paid €78.00 extra. Also (M) took her work phone from her and there had been no discussion.
At a later time LW told her that positions were being made redundant and that she could apply for all of the new positions. All of the employees received an e-mail with the job specifications and she saw that the position that had the specifications of her job was at a salary of €10k less.
The Claimant explained when asked that she would have accepted a job as purchasing admin with €35k. In four years she had no disciplinary problems. It was put to her that she was offered a job in the warehouse and she explained that she felt that it was unskilled and it involved heavy lifting.
The Claimant gave evidence as to her loss.
Determination:
Having heard the evidence adduced the Tribunal makes the following determination. Based on the evidence adduced the Tribunal finds in favour of the Claimant. The Tribunal preferred the evidence of the Claimant to that adduced on behalf of the Respondent. The Claimant was in effect being asked to continue in her job but at a wage level of €10,000.00 per annum below that which she was contractually entitled to. The Tribunal unanimously determine that the Claimant was unfairly selected for redundancy. The Tribunal having at the outset of the hearing canvassed both parties as to their preferred remedy should the Claimant’s case succeed, determine that the most appropriate remedy be compensation. Accordingly, the Tribunal awards the Claimant the sum of €8,800.00, as compensation under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal make the award having regard to the fact that the Claimant has been paid a redundancy lump sum of €5,436.00 and the award of €8,800.00 is in addition to that award.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)