EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Eimear Flood UD871/2014
- Claimant
against the recommendation of the Rights Commissioner in the case of:
Kildare Youth Services & Company Limited T/A Kildare Youth Services - --Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. O. Madden BL
Members: Mr. E. Handley
Mr. M. O’Reilly
heard this claim at Dublin on 19th August 2015
and 19th October 2015
Representation:
Claimant: Oisin Mcasey, Coughlan White & partners Solicitors, Moorefield Road,
Newbridge, Co. Kildare
Respondent: Mr. Fergal Fitzgerald Doyle BL instructed by:
Francis B. Taaffe & Co., Solicitors, Solicitors, Edmund Rice Square, Athy,
Co. Kildare
The determination of the Tribunal was as follows:
Background:
The company has responsibility for the managing and administering of youth projects funded by the Kildare Leadership Partnership for the collective benefit of the younger population in areas of Kildare.
The claimant was employed as a Project Worker on a certain project (P) for the youth of the area. She was employed on rolling fixed term contracts initially on a full time basis and subsequently on a part-time basis with one other Project Worker covering another area of Kildare. When this colleague commenced maternity leave the claimant covered her hours then working a full week as before.
The claimant’s employment was terminated on the 28th February 2015 by reason of redundancy.
Respondent’s Position:
The Regional Director (TD) gave evidence. He commenced his position in April 2012 and was one of the claimant’s Line Manager until her employment terminated by reason of redundancy on the 28th February 2014. He told the Tribunal that the claimant was always aware that the project she was employed to run was subject to funding.
He explained that his predecessor wrote to the claimant in March 2012 to inform her her fixed term contract would be extended until the 30th December 2012 but advised her this position could not be extended further after that date if future funding could not be secured.
In June / July 2013 two posts for positions as Senior Project Workers were advertised. The claimant applied but was unsuccessful in securing a post. The claimant was offered a position as a Youth Justice Worker but after consideration turned down the offer. This position had a salary of €4,000 less per year that her position at the time. TD told the Tribunal that he discussed the position with the claimant and was surprised she had turned down a more secure position which would be funded until 2014.
Minutes from meetings from the 18th September 2013 and the 16th October 2013 were opened to the Tribunal. In October 2013 the Board of Directors of the respondent company considered whether to support the unfunded P project “any longer in its current form and would necessitate a redundancy”. The respondent was running a considerable financial deficit at the time. In November 2013 the respondent decided to terminate the P project and two other projects run by the respondent. They sought advice from two HR sources as they had never dealt with a redundancy situation in the past.
In December 2013 TD met with the claimant and informed her she was to be made redundant which was to be effective from the 28th February 2014. The claimant was surprised, upset and disappointed.
On cross examination he told the Tribunal that he could not recall discussing any alternative position within the respondent company with the claimant.
When put to him he said that a similar role to the claimant’s was advertised by another company (CKLP) which the respondent had been involved with in the past funding various projects in the community, in particular the P project.
When put to him that the claimant felt she was unsupported in her role with the respondent and had requested support but “left to her own devices” he replied that they (respondent) had tried to recruit someone to the role but there had been no suitable applicants.
When asked why the decision to reduce the claimant’s hours of work was made instead of making her redundant he replied that the P project had been suffering a “slow death.”
The North Kildare Area Co-ordinator (ML) gave evidence. She took over from TD as the claimant’s Line Manager in mid-2013 and, in turn, she then reported to TD.
ML told the Tribunal she spoke to the claimant on a number of occasions concerning the funding of the P project. The claimant was well aware her post depended on whether the respondent secured future funding. ML met with the claimant in July 2013 to discuss the claimant covering a colleagues hours of work, they also discussed funding of projects on this occasion. They discussed the issue of funding again in August 2013 when the discussed the post of the Senior Project Worker. ML told the Tribunal that she advised the claimant to apply for the position as the funding available for this post was beyond 2014, the claimant’s post only had funding until the end of 2013.
In September 2013 the claimant was offered the position of Youth Justice Worker. ML discussed the post with the claimant but she decided to turn the position down because of the reduction in salary.
ML told the Tribunal the claimant attended a meeting on the 18th September 2013 which she, the witness had not been present. Budgets were discussed at this meeting. An email dated the 20th November 2013 was read into the record. It was minutes of a supervision meeting the claimant had attended with ML where the future of the P project was discussed.
ML told the Tribunal that she had emailed her Line Manager, TD, on numerous occasions regarding questions the claimant had regarding funding.
On cross examination ML said the claimant had been fully supported in her post. ML met her regularly, about “15” times throughout 2013. She also telephoned her on numerous occasions. The claimant was fully aware the funding for the P project would cease at the end of 2013, the claimant had been aware of the situation for months.
ML agreed the claimant had approached her in November 2013 telling her she, the claimant, felt isolated in the North West Kildare post. ML agreed, when put to her, that it was difficult to run the project with the Assistant post vacant but they had tried but were unable to fill it.
The Chairperson of the Board of Management gave evidence. She explained the various State agencies entities that provided funding to the respondent. CKLP had decided not to continue funding the P project and the respondent could not afford to fund the project completely. They were already running at a huge deficit.
At a meeting in October 2013 the Board decided to cease the P project. Three other projects “lost out”. The witness explained that the Board had tried to secure alternative funding but to no avail and the Board were fully aware the affect the project had on the community but they had no choice but to cease it.
Claimant’s Case:
The claimant gave evidence. She explained that she had worked on projects for the respondent for 5 ½ years on a number of rolling contracts which she had been informed were subject to funding.
The claimant explained during her tenure she had four different Supervisors including TD and ML. She explained to the Tribunal that she felt they were unsure what the P project entailed, even though she had briefed them in the past and she felt she had spent a lot of her time seeking support from them. She had to keep them up to date on how the project was running. She said she felt, isolated, disconnected from the organisation and “out there”.
She told the Tribunal she was aware the difficulty the respondent had filling the Assistant post and had spoke to ML about it.
She applied for the Senior Project post but was unsuccessful and said she felt the post had been earmarked for someone else. She explained that she had not accepted the junior post as it had a reduction in salary of €4,000 but might had thought differently if she had known her job was in jeopardy.
The claimant told the Tribunal she was aware of the funding involved in the P project. She had been in that position in previous years when she had been advised by the respondent that they had not secured funding to continue it but they had been able to secure it two weeks before the end date. She said she did not realise the “full threat” on the project until November 2013. When she was informed in December 2013 she was to be made redundant she was shocked, upset and angry. She felt other options could have been taken on board and had suggested the Athy project could cease as it had another similar project to the P project in place there. She told the Tribunal that she had always fought for the P project to be kept in place.
The claimant gave detailed evidence of her loss of earnings and the redundancy payment she had received.
On cross examination she said she understood the respondent had financial difficulties but they could have found her an alternative position.
When put to her if she could recall TD informed her the Youth Project post was funded to 2014 and possibly to 2020 she replied that she could not recall. She felt she should have been given the Senior Project Worker position.
When put to her that she was aware of the situation regarding funding for the P project she replied that she was aware of it and was aware there had been a serious threat to funding for all projects in October 2013 but the P project had always secured funding in the past.
Determination:
The Tribunal had carefully considered the sworn evidence and submissions adduced in this matter.
The claimant was fully aware in previous years that her position and the P project were subject to funding. In the past she had been informed funding had not been secured but fortunately the respondent was successful at the last minute, secured the funding and the project continued for another period of time. In 2013 the respondent found itself in a different position with severe financial constraints. The Board came to the decision the P project and other projects would have to cease to ensure other projects remained viable. It was decided the claimant would be made redundant.
In these circumstances the Tribunal finds the termination of the claimant’s employment was fair. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)