EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Tomasz Gil -claimant
UD418/2015
against
Tesco Ireland Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms. S. Kelly
heard this claim at Carlow on 8th December 2015
Representation:
Claimant: In person
Respondent: IBEC, 84-86 Lower Baggot Street, Dublin 2
Background:
A translator was present for the hearing.
The fact of dismissal was not in dispute. The respondent is a multinational grocery and general merchandise retailer. The claimant was employed as a customer assistant on the night shift. The respondent reviewed its night shift operations in stores nationwide in late 2014 which resulted in the company either fully or partially closing its night shift operations in its stores.
Preliminary issue:
It was the respondent’s case that the claimant both applied for, and accepted, voluntary redundancy terms on the 2nd January 2015. A full and final settlement agreement was provided to and signed by the claimant prior to the termination of his employment. The agreement precluded him from seeking redress under the Unfair Dismissals Acts and it was submitted that the Tribunal did not have jurisdiction to hear the claim.
It was agreed that where it was the claimant’s case that he signed the waiver against a certain background, it was appropriate for the Tribunal to hear evidence in order to make a determination on the preliminary issue.
Summary of evidence:
The Store Manager outlined that the night shift operation was no longer profitable for the respondent company and this prompted the review in late 2014 of the night shift operations.
The company consulted with the trade unions and a joint proposal document regarding night working issued to the employees. Part of this document outlined the options available to employees affected by the partial or full closure of the night shift.
The claimant was provided with the documentation by his union representative. The claimant understood that he was voting on the option that was his preference if the night shift operation ceased. The claimant selected voluntary redundancy on the basis that the night shift was going to be discontinued completely. There was also the option of taking up a position on a day shift but it was the claimant’s evidence that he did not consider this, as his body was accustomed to night shifts having worked such shifts for eight years.
The claimant signed a waiver and other documentation pertaining to the redundancy before his employment terminated on the 10th January 2015. These documents were provided in English only. The claimant accepted that he may have received the waiver a week in advance of the date that he signed the document.
The claimant stated that he had brought the case before the Tribunal as he found out in late January 2015 that the night shift had continued in the Carlow store and the option of continuing to work on night shift was not put to him as an alternative to redundancy. Had such an option been put to the claimant, it would have been his preferred choice. It was his evidence that there are currently employees working on the night shift who have less service than he had.
It was the Store Manager’s evidence that the claimant was one of the best workers on the night shift. It was very much “50/50” whether or not the Carlow store, where the claimant was employed, would close its night shift fully or partially. He first became aware week commencing 9th January 2015 that there would be a partial night shift retained in the Carlow store. The remaining night shift positions were offered on the basis of seniority on the night shift. However, staff also had the option of trialling day shifts and staff were therefore in flux for a number of weeks. Consequently, there was uncertainty as to the number of positions required for the continuing night shift.
The claimant was in the first of three phases of redundancies that were implemented. The Store Manager stated that the claimant may well have ended up on the night shift but that depended on the take up and he was satisfied that the claimant understood that the offer of the night shift was based on seniority. The claimant was well down the list in terms of service.
The Store Manager did not revert to the claimant when the decision was known week commencing 9th January that the night shift would only close partially.
The names of the nine employees who ultimately remained on night shift were accepted by the clamant as having longer service on the night shift than he did. However, it was his evidence that since that time employees with lesser service than him have commenced working on the night shift.
The claimant has not succeeded in securing new employment and his preferred remedy is re-instatement. It was the respondent’s case that the claimant could have mitigated his loss by accepting a position on the day shift.
Determination:
The claimant was an established night shift worker with the respondent when restructuring arrangements were brought into being across the respondent’s stores to address issues of profitability around night-time arrangements.
In the event a scheme was agreed with the Mandate and SIPTU trade unions for implementation across those stores. The scheme envisaged two possibilities as regards the respondent’s stores. It envisaged that some stores would fully discontinue permanent night crews which others would have partial discontinuance only.
It appears that there was considerable uncertainly around which of the foregoing night crew options would apply in respect of the Carlow store where the claimant worked. The Store Manager in the respondent’s Carlow store explained the uncertainty there had been around this issue and informed the Tribunal that it was on the 9th or 10th January 2015, or possibly in the previous days that he learned that the Carlow store was to have partial discontinuance only of its night crews.
The Tribunal is absolutely satisfied that the claimant would not have opted for voluntary redundancy had there been the prospect of him remaining as a night crew member.
Further, the Tribunal is satisfied that on the 2nd January 2015 when the respondent accepted the claimant’s application for voluntary redundancy the claimant did not have the option of being considered for a night crew position as the decision to retain reduced night crews had not been communicated to the Store Manager at that time or, if it had, the claimant had not been informed of this development.
When the claimant signed the waiver and RP5O on the 10th January 2015, the Tribunal is of the view that he was not made aware of the fact that there was now a prospect of him securing a night crew position. Had he been informed, the Tribunal is of the view that, he would not have left his employment but would, at the very least, have deferred his decision until he knew if he could secure one of those positions.
Accordingly, the decision to opt for voluntary redundancy and the signing of the waiver of the 10th January 2015 could not be considered as informed decisions in circumstances where the full facts were not known to the claimant and were not communicated to him.
The respondent cannot rely on the waiver of the 10th January nor on the decision to take voluntary redundancy in all of the circumstances.
As it transpired, it seems that, had the claimant been given the option to defer his decision so as to see if he would ultimately qualify for one of the night crew positions he would have ended up securing one of those positions. The respondent’s evidence was that the positions were filled on the basis of seniority on the night shift and that ultimate take up was such that persons with lesser seniority than the claimant ended up filling some of those positions.
The claimant advised the Tribunal and it is accepted that he would not have sought relief from the Tribunal had all of the positions on the night crew been filled by individuals of greater seniority.
In all of the circumstances, the Tribunal is of the view that the termination by the claimant of his employment with the respondent could not be classified as voluntary in the true sense. For the respondent to accept his resignation in the circumstances that pertained and where the claimant had not been given all of the pertinent facts was unfair.
Accordingly, the Tribunal finds that the claimant has succeeded in his claim that he was unfairly dismissed.
The Tribunal orders that the claimant be re-instated to his position as a member of the Night Crew retrospective to the 10th January 2015 with full continuity of service.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)