EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Clár ICH
- appellant
UD1623/2014
against the recommendation of the Rights Commissioner in the case of:
Tom Walsh
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this appeal at Castlebar on 29th July 2015 and 4th November 2015
Representation:
_______________
Appellant(s) : Mr Dick Cahill, Ashdale, Ballymoate, Co. Sligo
Respondent(s) : Mr. Gary Mulchrone, Gilvarry & Associates, Solicitors, Unit
9, N5 Business Park, Moneen Road, Castlebar, Co Mayo
This case came before the Tribunal by way of an appeal by the employer (appellant) against the recommendation/decision of the Rights Commissioner (r-141254-ud-13) under the Unfair Dismissals Acts 1977 to 2007.
Appellant’s Case:
The appellant is a charitable organisation set up to insulate homes for disabled and elderly people. The respondent was employed as an insulation installer from 2 March 2009 until 11 June 2013 having been on lay-off for the previous six months. The respondent was dismissed by way of redundancy.
The manager for the appellant (AG) told the Tribunal that the respondent was selected for redundancy based on his medical condition (asthma) and the fact that he was unable to carry out attic work because of this condition. (AG) told the Tribunal that although the respondent had on occasion worked in attics he made it clear to her a number of times that he did not want to do so. This was taken into account when assigning work to the respondent and the appellant was flexible in this respect. However when funding was cut it was no longer possible to designate only work that did not involve attics to the respondent. There had previously been redundancies and selection had been on the basis of Last In First Out (LIFO) but (AG) maintained that length of service was not the only consideration, and that even though the respondent was the longest serving member, the fact of his condition was the overriding factor in the decision to make him redundant. The respondent was never sent for a medical examination in respect of his condition but (AG) concluded that he could not work in attics based on his past history. (AG) was not aware of the respondent ever having had an asthma attack in work.
(AG) had been approached by the respondent with allegations of inappropriate use of company vehicles and concerns about the collection of voluntary contributions from clients. (AG) investigated these matters and found no evidence of wrong doing. (AG) reported back to the respondent in respect of her investigation.
(MP) gave evidence that he was the supervisor on the warmer homes scheme at the time of the respondent’s employment. He was the respondent’s supervisor for approximately three years and gave evidence that the respondent informed him that he could not work in attics as the dust would affect his medical condition, as he had a bad chest. He accommodated the respondent in that regard, allocating work to him on houses that required insulation of walls. He told the Tribunal that he had an OK relationship with the respondent on a day to day basis but gave evidence that the respondent was constantly late for work.
He told the Tribunal that the respondent never worked in attics and he (the witness) never asked him to do so because of his medical condition. If the respondent handed up attic insulation to work colleagues, that was the extent of his involvement in attic work. He (the witness) accepted the respondent’s word that he had a bad chest and he did not have the respondent medically assessed.
He confirmed that he was aware that the respondent had made a complaint in relation to malpractices in the workplace, specifically in relation to unaccounted work being carried out, and donations received from customers not being recorded and receipted. The witness told the Tribunal that this allegation was untrue.
He had no involvement in the decision to make the respondent redundant as he had re-located to a different scheme at the time the respondent was made redundant. He had no discussions with anybody concerning the respondent’s redundancy.
Respondent’s Case:
The respondent gave evidence that he commenced working for the respondent in March 2009. He was employed under a written contract of employment and his job title was Cavity Wall Insulator. He was subsequently issued with a number of fixed term contracts. During the course of his employment he was laid off on a number of occasions. He told the Tribunal that he worked on attic and wall insulation for the appellant. He lagged pipes in attics. He accepted that his preference was for cavity wall work but on occasions he worked in attics.
In December 2012 he was placed on lay-off and was expecting to return to work sometime in January 2013. He gave evidence that other employees had been put on lay-off and had been rehired but he was not rehired despite receiving assurances that he would be. He contacted the appellant on a number of occasions between January 2013 and June 2013 seeking a return to work date but he was never rehired and ultimately he was made redundant on 24 June 2013.
He gave evidence that other workers with less service had been rehired yet he was made redundant. He refused his redundancy payment. He believed that he had been made a scapegoat for highlighting malpractices in the workplace which he had raised as far back as 2011. He was concerned that he was going to be framed for those work malpractices. He raised these issues again in 2013 but they were never addressed.
He had not been told of the discontinuance of the practice of seeking donations from householders for work carried out. He believes that he was made redundant because of the issues that he had raised. He told the Tribunal that previous redundancies implemented by the respondent had been carried out on a (L.I.F.O), last-in-first-out basis, yet he had longer service than other employees when he was made redundant.
The appellant carried out no assessment of his skills. He would have been happy to consider part-time work or a reduction in pay but neither were offered to him. He had never refused to carry out attic work and was never requested to attend a doctor in relation to his medical issues. The Tribunal heard further evidence in relation to his efforts to mitigate his loss and his total loss was outlined to the Tribunal.
Determination
Having carefully considered the oral and documentary evidence submitted by both parties, the Tribunal finds that the requirement for work that the respondent was carrying out had dissipated and that there had been a reduction in grant assistance. In the circumstances, the appellant took the view that this created a genuine redundancy situation.
The Tribunal also accepts that the respondent had made it clear that his preferred option was for cavity wall work due to health reasons. However, when selecting the respondent for redundancy the appellant failed to carry out any assessment of the respondent’s skills. The Tribunal finds that the selection process relied upon by the appellant did not comply with its own procedures. In particular, the appellant did not give due regard to the length of the respondent’s service.
Accordingly, while the Tribunal is satisfied that a genuine redundancy situation existed, the selection process was flawed. Therefore, the Tribunal finds that the respondent was unfairly dismissed. Due to breakdown of trust between the parties the Tribunal is not disposed to re-instate the respondent and, instead, considers compensation to be the appropriate remedy in this case.
The Tribunal varies the recommendation of the Rights Commissioner and awards compensation in the sum of €9750.00 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)