EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Matthew Reilly -claimant UD1061/2014
against
M And J Gleeson And Company T/A The Gleeson Group
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr R. Murphy
Mr. J. Dorney
heard this claim at Dublin on 17th September 2015 and 26th and 27th November 2015
Representation:
_______________
Claimant: Mr. Oliver Costello B.L. instructed by Mr. Ken Smyth, Ken Smyth &
Co., Solicitors, Suite One, Merrion House, 1-3 Lower Fitzwilliam Street,
Dublin 2
Respondent: Ms. Mary Paula Guinness B.L. instructed by Ms. Julie Galbraith,
Eversheds, Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
Summary of evidence
Extensive and detailed evidence was given by the claimant and a number of witnesses for the respondent.
The respondent is a drinks manufacturer and distributor who employed the claimant from January 2001 until February 2014. The claimant was employed initially as a credit controller but his role developed significantly to incorporate the company secretary role and responsibility for all insurance and legal matters in the original company.
The original employing company was bought by the Gleeson Group (respondent) in March 2013. There was a bonus scheme in place in the old company, but as part of the merger the claimant signed a waiver that stated,
“For the avoidance of doubt I confirm that I am not entitled to any payment, damages or compensation of any kind under the Phantom Profit Sharing Scheme or any similar wealth sharing schemes and furthermore I have no entitlement to a claim at Completion or at any future date in connection with the Phantom Profit Sharing Scheme.”
As there were a number of separate finance operations it was decided to restructure the finance function into one centralised operation to be based in Belfast. This was announced in July 2013; the respondent notified the claimant that this restructuring included the potential for redundancies. The respondent viewed the claimant as being part of the Finance team whereas the claimant maintains that his role had changed significantly to the point where he could not be considered part of the Finance team for re-structuring purposes.
A comprehensive consultation process took place and ultimately the claimant’s role was selected for redundancy. Within the Gleeson Group there was an existing legal team, they had a group insurance policy looked after by an insurance team and as it is a publicly trading company the role of company secretary is considerably different and more demanding. There are significant additional reporting requirements and responsibilities for a company listed on the stock exchange.
On the 20th of August 2013 the respondent received the claimant’s preference form for alternative roles. The claimant listed the roles of Accounting Services Manager and Credit Manager based in Belfast and his first preference as Assistant Company Secretary based in Dublin. After meeting with the Company Secretary for the Group on the 3rd of July 2013 the claimant was offered the role of Assistant Company Secretary. This role would be a promotion in terms of career advancement for the claimant; the claimant’s salary would remain the same. The respondent has a policy only to give company cars to employees that require them for their role; the respondent would ‘buy out’ the claimant’s old car scheme if he accepted the alternative role. The claimant signed a waiver to say he no longer had a claim in the old company’s profit sharing scheme and as part of the new role he would be eligible for the group annual bonus scheme.
By letter of the 30th of August 2013 the claimant confirmed to the respondent that the loss of the bonus he had with the original company and the loss of his company car would not be acceptable to him and would therefore inhibit him from accepting the alternative role offered. As he had not accepted the role, the claimant was informed that the respondent had progressed in filling the role with another candidate.
The claimant’s position and remuneration remained unchanged. He received his notice of redundancy on the 10th of January 2014 which expired on the 28th of February 2014. In addition to a redundancy lump sum the claimant also received a recruitment and retention award of €29,695.24.
Determination
The claimant’s original employer was taken over by the respondent in late 2012. A redundancy situation arose as part of a restructure that was necessary after the respondent acquired the original company.
The claimant’s duties were distributed within the new entity; specifically the insurance, credit control and Company Secretary role associated with the original private company. Following consultation, the new entity offered the claimant two roles in Belfast which he declined for domestic reasons and a role in Dublin as Assistant Company Secretary of the new entity. The salary was the same as his previous role. However, the claimant expected that his overall income package would be retained. This was not possible due to the new entity’s policy of providing a car only to employees whose jobs were in the field. The claimant had also signed a waiver for the discontinuation of a ‘phantom profit share scheme’.
At the conclusion of the consultation process the claimant declined the alternative job offered, as he would lose the bonus he had enjoyed with the original company and although the respondent would ‘buy out’ the claimant from the car scheme he would lose his company car privilege going forward. The claimant was made redundant and paid statutory redundancy.
In the circumstances the Tribunal is of the view the claimant was not unfairly selected for redundancy and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)