UD1192/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

Declan Murphy                                                                                               UD1192/2014

-        Claimant

against

Irish Wildbird Conservancy T/A Birdwatch Ireland

-        Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr F. Moloney

                     Mr A. Butler

heard this claim at Dublin on 4th November 2015

                                         and 7^th December 2015

                                         and 8^th December 2015

Representation:

Claimant(s) :  Ms. Mary Paul Guinness BL instructed by:

                        Ms Anne Barrett, Hussey Fraser, Solicitors, 17 Northumberland Road, Dublin 4

Respondent(s) : Ms. Bébhinn Murphy BL instructed by:

                        Phelim O’Neill Solicitors, 120 Pembroke Road, Dublin 4

The determination of the Tribunal was as follows:-

Determination:

The Tribunal has carefully considered the evidence adduced over the three days of this hearing.

The Claimant brings this claim for unfair dismissal against his previous employer in circumstances where his position was ultimately made redundant in June of 2014.

The Claimant commenced his employment with the Respondent entity, which is a not for profit organisation responsible for the study of and conservation of birdlife in Ireland in and around 2001. The Respondent is funded by way of a system of domestic and international grants, voluntary contributions and membership as well as having a retail unit which generates funds for main operational costs.

The Claimant was headhunted by Mr. OOS as being an enthusiastic birdwatcher with some retail experience in 2001 and at that time the Claimant joined a small workforce and acquired a diverse set of duties to do with the running of the small retail unit (initially in Monkstown and then in Rathcoole) as well as being involved with many administrative functions associated with the smooth running of the Respondent entity.

The Claimant, and indeed all of the witnesses, had an infectious enthusiasm for all the things to do with birdlife and the preservation of their habitats and species diversity. The Claimant felt himself to be very fortunate in holding down a job allowing him to interface with other bird enthusiasts everyday. That the Claimant was competent and able is beyond doubt and his colleague and Line Manager was full of praise for his efforts and capabilities. In particular, the Claimant was being given credit for building up an online presence which generated sales and awareness.

However, beyond the scope of the retail unit Birdwatch Ireland had run into financial difficulties and in particular was operating a year-on-year deficit which is unsustainable for a not for profit organisation which is primarily answerable to a valuable and passionate membership.

Birdwatch Ireland is governed by a Board of Directors primarily made up of persons giving up their time on a voluntary basis. Up until the end of 2013 there was a Chief Executive Officer reporting to the Board and managing the Department Manager and Officers who in turn managed the staff (including the Claimant herein).

It is common case between the parties and accepted by the Tribunal that there was a need to arrest the annual deficit and it was in those circumstances that the issues of restructuring and re-organisation came into focus.

The Tribunal heard evidence initially from a Ms. C regarding the profits coming from the retail unit and when Mr. OOS challenged the figures presented it seems clear that the retail unit operating under the Birdwatch title was for the greater good of the movement and not just to cover it’s own cost base. The Tribunal accepts the logic of this. Non-earmarked funding was described as “gold dust” to the Tribunal and it has to be accepted that the more money made available through the retail unit the better it would be for the Respondent achieving it’s laudable objectives and aims.

Even a most basic perusal of the figures up to 2012 show that sometimes up to two thirds of the shop’s profits was going on one individual’s salary – namely the Claimant. It is not therefore surprising that the manner in which the retail unit was being run and the potential income therein which could be yielded therefore needed to be looked at and by the summer of 2012 the Board of Directors was looking at the shop alongside all aspects of Birdwatch’s finances to see what could be done to reverse the year-on-year deficit situation. In particular the Board requested that Mr. OOS (the Claimant’s Line Manager) would prepare a paper on the workings of the retail unit as it then existed and same was due to be completed by the end of 2013.

In an effort to keep the workforce appraised of the financial affairs of Birdwatch Ireland the CEO (AL) did call a meeting in January 2013 which was described by the Claimant himself as “sobering” and the Tribunal accepts that the CEO indicated then there would be changes required to keep Birdwatch afloat and there can be little doubt the workforce knew or ought to have known that a reduction in salaries, hours and workforce numbers were all options to be considered.

In February the CEO had a one to one meeting with the Claimant though the two gave very different accounts as to the content of this meeting.

The Tribunal cannot tell which is the correct account though the Claimant did indicate that he understood his working hours would be reduced. The Claimant hoped only by 20% or 40%. The CEO’s note of the meeting included reference to the potential of looking at alternative work and other new posts in the event of a permanent reduction in the retail hours.

Another 6 months (August 2013) lapsed before the Claimant was called to another meeting – again with AL. It is noted that AL had at this point handed in his notice as CEO – in some part seen as a cost saving measure – and that there was an unfortunate state of flux at management level over this next period of time.

Before the meeting in August 2013 the Board of Directors had (on July 15^th) given consideration to a matrix prepared by AL on all staff members both funded and non-funded with a view to getting a picture of essential and non essential roles. The Tribunal has no idea to what extent the Board scrutinised this matrix and it is certainly the case that the Claimant’s position came into focus. The “rationale” suggests that the retail aspect of the Claimant’s position was less than half a weeks work with the administrative function being capable of being handled by the “core” administration staff. How certain persons and not the Claimant came to be considered “core” administrative staff is not known and how the ratio was worked out was not made known to the Tribunal nor apparently asked by the Board at the relevant time.

It has been a consistent, and fair, assertion made by the Claimant that nobody came to him to ask him what his functions were and what his skill set could potentially be. Particularly upsetting for the Claimant was the scoring of “2” (optional) against his position where others got a higher rating with no explanation.

At the August meeting held between the Claimant, AL and Mr. K’OB there was again little agreement. In particular the Claimant says he was being made redundant whilst the CEO and Director said they were looking at alternatives to redundancy. In any event, the Claimant came back within the allocated few days and said he would work two days per week for a period of time. This he said was intended to be an interim measure and a gesture of goodwill on his part to demonstrate his loyalty. It was his intention that by the end of February 2014 he would revert back to a full-time position.

Looking at the letter of the 17^th of September from employer to employee setting out the “temporary reduction in working hours” it is clear to the Tribunal that nothing had as yet been set in stone and that there was a promise of a review on or before the 24^th of January 2014. The Tribunal cannot accept that there was a promise to revert to a full time position and nor was there an indication that there would be a redundancy. The outcome of any such review was simply unknown.

Realistically, the Claimant had been put in some sort of “holding” position pending a full and desired analysis of the retail unit with the Board had set in train and was awaiting.

It is worth noting that despite being the incredibly Christmas season that neither the retail unit nor the administrative function suffered as a consequence of the Claimant being put on a reduced working week and to that extent the Tribunal must accept that the rationale behind eliminating a full time position in favour of a part time position in the retail outlet was proven to be correct.

In January 2014 the Claimant became understandably anxious about where he stood and formed the view that he was to be returned to a full time position after the 24^th of January. Whether this was a correct position in light of a promise of a “review” is questionable.

By now within the organisation AL had been replaced by a Ms. C and a Ms. E. jointly carrying out the CEO function. There is a general air of disorganisation and the retail analysis paper commissioned by Mr. OOS only became available and was thought not to be detailed enough and not to be considered the commercial realities of a not for profit organisation seeking to generate an income from its one retail source. It is an unfortunate feature of the state of flux previously referred to that the Claimant was left uninformed and unaware of what his future role with Birdwatch would be up to the 24^th of January 2014.

The Tribunal accepts there was a genuine understanding that the Claimant would be in on that particular date and Mr. K.O’B would be in to have a chat with him but as it happens the Claimant was not there and Mr. O’B opted to communicate by post and email the proposition that the two day week would continue for a further two month period.

In an unexpected turn of events the Claimant nominated solicitors to deal with all matters relating to his employment from that moment on. The Tribunal accepts that this is the Claimant’s entitlement and the decision was borne out of the employer’s failure to “review” the “temporary reduction” with the Claimant.

A final report prepared by Ms. C and Ms. E on the direction the retail unit should take was only prepared in February of 2014.

The Claimant has made the case that he was unfairly selected for redundancy and the Tribunal accepts that there were some anomalies in the matrix prepared and outlined. What was not in doubt is that the retail unit and administrative function was capable of having its numbers reduced by one permanent employee.

The Claimant has further made the case that the employer did not act fairly and reasonably in its selection and in particular did not give appropriate thought and consideration to the Claimant’s many and varied skillset and it was evident in the course of the hearing that the Claimant was never consulted to determine if any of the seasonal or part-time or externally funded positions would in some way make up the differential between what the Claimant earned full time and what he could have earned part-time on a two day or even one day basis. Each party pointed out the other party as having to make the first move in this regard. On balance the Tribunal finds the employee would have been found wanting in this regard.

Unfortunately by the beginning of February 2014 the parties were now communicating between solicitors and no real effort was in fact made to try and pull back.

The Tribunal finds that the manner in which the Claimant was selected for redundancy was unfair in so far as the matrix used was unsatisfactory. That there was a need for a reduction in hours and or redundancy is accepted. Whether the Claimant could have stayed on in another one or two roles is unknown as this option was not explored and it is regrettable that the Claimant left Birdwatch Ireland – a body which he had been associated from early on.

The Tribunal whilst finding that the Claimant was unfairly selected for redundancy and in particular was treated in and unfair and unreasonable manner does not find the option of re-instatement to be an acceptable one. In light of the efforts made to find alternative employment the Tribunal awards the sum of €13,000 which is a sum to be taken in addition to the previously awarded €12,600 which was a redundancy payment made and which the Tribunal accepts the Claimant was right to accept even though his redundancy amounted to an unfair selection for redundancy.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)