UD234/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD234/2015

CLAIM(S) OF:                                                                                             

Magdalena Haba                                 - claimant              

Against

C&F Automotive Limited T/A Iralco - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr P. Pierson

                     Mr N. Dowling

heard this claim at Mullingar on 16th November 2015 and 22nd February 2016

Representation:

Claimant:         Mr Michael O’Sullivan, Arra HRD Limited, Castlelost West, Rochfortbridge, Co Westmeath

Respondent:    Mr Thomas Harrington, In House Legal Adviser, C&F Group C/O C&F Automotive Ltd, Collinstown, Mullingar, Co Westmeath

Summary of Evidence:

The respondent company manufactures functional and decorative trim for the automotive industry. The respondent acquired another business in and around 2008. The employees’ contracts of employment changed around that time with one significant change being the abolition of the “last in first out” policy for redundancy.

The Production Manager and currently Acting General Manager (AE) gave evidence on the financial state of the company in 2012. The company suffered significant losses and was haemorrhaging money. In October 2013 the company employed 451 employees but now it currently employs 377 people. AE gave evidence of undertaking a cost reduction programme. The programme included reducing energy costs and attempting to improve efficiency. A large customer (Ford) reduced business in 2014 and a production chart was opened to the Tribunal. Another customer moved its business to a sister company of the respondent in Germany as was the case with a number of other motor companies including Porsche, BMW and Opel.

The claimant who had commenced employment with the respondent company in 2011 was employed as an Assistant Quality Administrator. In October 2014 the respondent notified the claimant of the decision to make her redundant. The Managing Director at the time made the decision. The claimant’s work had reduced significantly and any work remaining was assigned to the Senior Quality Administrator. Five similar roles in the company were also made redundant at the same time. The witness conceded that no consultation with employees took place prior to the redundancies. The claimant got no advance warning and no alternatives were considered. AE stated that all employees were aware of the financial difficulties the company was experiencing through communications from cell leaders and notice board postings. The witness recalled that the claimant had previously refused to do work which another employee (NG) had done when requested by the then general manager. When NG left the company her work was distributed across the quality department.

The Human Resources Manager gave evidence of attending the meeting with the General Manager and the claimant present. The claimant’s letter of termination dated the 31^st October 2014 was opened to the Tribunal. The content of that letter was referenced at the meeting where the claimant was informed. The claimant was given two months notice and later signed her redundancy documentation. The dismissal was not appealed.

During cross-examination the Human Resources Manager stated that she did not inform the claimant what the meeting was about in advance of the meeting nor did she offer the claimant an opportunity to be accompanied at the meeting. She did speak with the General Manager before the meeting but there were no alternative positions that were suitable for the claimant.

The Human Resources Manager confirmed that DB (brother to the Quality Manager) was recruited as a general operative in 2014. He was later placed within the quality department during the summer of 2014. DB’s role was described as a shared resource as he assisted the Human Resources Manager and the Lean Engineer as well as the quality department. DB’s role was not comparable with the claimant’s role as he covered three areas.

The company pays employees in lieu of notice to allow them to seek new employment. This is offered to all employees whose positions are selected for redundancy. The company had previously made 20 positions redundant in October 2013 and a further 17 positions were made redundant prior in March 2014.

The claimant outlined in her evidence the duties associated with her role as Assistant Quality Administrator. Some six or nine months prior to October 2014 she noticed that her duties were reducing and she identified this to be in or around the time that DB joined the quality department. DB took over business operating system duties which the claimant had been carrying out. This entailed compiling spreadsheets of all of the quantities of worked, re-worked or scrapped parts. This was recorded on a daily basis and resulted in 70-90 sheets per day being produced. It was the claimant’s evidence that this work was taken from her entirely in the months prior to her position being selected for redundancy. The claimant agreed during cross-examination that she was provided with a new task by the General Manager in or around that time.

In or around October 2014 there was no general discussion in the company about the possibility of further redundancies. It therefore came as a shock to the claimant to be brought to the meeting on the 31^st October 2014 and informed that her position was redundant. She was not informed that she could appeal the decision to make her position redundant.

During cross-examination she accepted that there was discussion of cost-saving efforts in the company and that she was aware that some product lines were lost to the company in 2014. She did not agree however that redundancies were necessary. She added that she had helped out in the production area and was able to perform other tasks.

The claimant gave evidence of her financial loss and her efforts to mitigate that loss.

Determination:

In the summer of 2014 the company recruited a new employee, DB (brother of the Quality Manager). Some of the claimant’s duties were allocated to DB.

The claimant was not consulted by the respondent company about the impending redundancy of her position. Indeed she had no knowledge of the proposed redundancy of her position until she was called into the meeting on the 31^st October 2014. On this date, while she was at work, she was called into the meeting with the General Manager and the Human Resources Manager. This was the first time the claimant became aware that her position was under threat. She was not advised that she could be accompanied to this meeting by a representative of her choice. An employer is obliged to discuss with an employee any proposed redundancy of that employee’s position in advance of making any such selection and selection criteria should be discussed and explained to an employee.

The respondent company has failed in its duty to act reasonably and discuss with the claimant about how her employment might have been protected.

The company had made up its mind to dismiss the claimant (by reason of redundancy) as is clear from the fact that the letter of dismissal dated the 31^st October 2014 and the redundancy calculation (most of) was prepared prior to the meeting of the 31^st October 2014.

Accordingly, the Tribunal determines that the claimant was unfairly selected for redundancy in accordance with Section 6 of the Unfair Dismissals Act 1977, as amended. The Tribunal finds for the claimant due to the absence of fair procedures on the part of the respondent in carrying out the redundancy. The Tribunal finds that the claimant is entitled to compensation of €15,500 (over and above the sum of redundancy already paid to the claimant) under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)