EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD949/2014
CLAIM OF:
Margaret O'Riordan
-claimant
against
Prompto Dispatch Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O’Mahony B.L.
Members: Mr. D Hegarty
Mr. J. Flavin
heard this case in Cork on 26 August 2015 and 08 December 2015
Representation:
_______________
Claimant: Ms. Denise Mulcahy BL instructed by Eamon Murray & Co., Solicitors, 6/7 Sheares Street, Cork
Respondent: Mr. Byron Wade B.L. instructed by, Joyce & Co., Solicitors, 9 Washington Street West, Cork
Preliminary Issue
The respondent contended that the Tribunal was prevented by virtue of section 15 (3) of the Unfair Dismissals Acts 1977 to 2007 from entertaining the claim under the Acts due to the fact that following the receipt of her notice of redundancy on 21 March 2014, indicating that she was to cease working for the respondent from 28 March 2014, proceedings had been initiated on her behalf in the Circuit Court seeking inter alia injunctive relief prohibiting the respondent from terminating her employment and seeking damages for infringement of her constitutional right to earn a livelihood. After an ex-parte hearing, a number of adjournments were granted and an agreement was ultimately reached between the parties to strike out the proceedings in consideration of certain payments being made to the claimant in identical amounts to those outlined in the redundancy notice served on the claimant on 21 March 2014 (see substantive case below) but without prejudice to the claimant’s entitlement to issue certain proceedings in the Employment Appeals Tribunal and allowing for the production of the consent/agreement document at any such proceedings.
Determination on Preliminary Issue
Section 15 of the Unfair Dismissals Act 1977 as amended by substituting a new subsection (3) provides:
(3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.
Having considered the subsection the Tribunal finds that the section 15 (3) exclusion of the Tribunal’s jurisdiction does not apply in this case where an ex parte application had been before the Circuit Court.
Summary of Evidence in Substantive Case
The claimant worked for the respondent company from 6.April 1995 to 28 March 2014 when her employment was terminated by the respondent by reason of redundancy.
She had been in a personal relationship with the managing director and principal shareholder (MD) of the respondent transport company for over twenty years and they have a daughter who is in her twenties. The claimant was a non-executive director with one company share but she never attended Board Meetings and had no knowledge of the company financial matters.
The claimant worked mornings, averaging around 20 hours per week, in the transport office and was free to pursue her hairdressing work in the afternoons. All other employees were full-time, working 44/45 hours per week. Following their separation in 2008, the claimant continued in the employment for a further six years without any problems and her duties remained the same.
While 2013 was a good year for the respondent it did not wipe out the significant financial losses of over €600,000 accumulated by the company in the preceding five years. In February 2014 the respondent lost two substantial contracts. The respondent took the pre-emptive measure of cutting costs to stem losses. As wages were the respondent’s highest cost MD and FCM (Financial Controller and Office Manager) took the decision to restructure and reduce staff numbers.
Selection for redundancy from among the transport office staff was by way of an assessment on an eight point matrix, which did not include length of service with the company. LIFO was applied to the drivers. FCM designed the matrix and assessed the office employees. MD agreed with his assessments. The criteria included: experience, qualifications, flexibility, PC competence, cost, hours of work, ability to cover (for other employees) and ability to assume others’ duties. The claimant scored lowest on the matrix. Her duties with the respondent were of a clerical nature and included receptionist, administration and pricing duties. The one contract for which the claimant did pricing had been lost; she would only do one extra hour; all her other duties could be absorbed by the remaining staff; she could cover some jobs but none in full; some members of the office staff had relevant third level qualifications; and, she only worked around 20 hours per week.
It was common case that a conversation took place between MD and the claimant around mid- March 2014 about her return to full-time work or redundancy would be considered. It was common case that the claimant asked MD to put a package together for her legal team to consider. MD’s assertion that the claimant rejected the idea of full-time work was denied by the claimant. Her position was that there had been no further discussion with her regarding full-time work.
Of the five employees whose employment ended in early 2014 some left of their own accord and a mechanic opted for voluntary redundancy. The hours of two other employees were reduced to a four-day week. Alternatives, other than full-time hours were not explored with the claimant. The remaining staff in the transport office all work full-time and have absorbed the claimant’s duties for no additional pay. Training was not offered to the claimant as this would defeat the purpose of cost-cutting. The claimant has not been replaced. The respondent lost other contracts in March 2014.
On 21 March 2014 the claimant was given a brown envelope containing her notice of redundancy, which was to take effect on the 28 March 2014, and outlining that the termination payment would comprise a statutory redundancy payment in the amount of €23,556.00, eight weeks’ pay in lieu of notice payment amounting to €5,007.60 (she was not required to work her notice) and a car valued at €9,750.
The claimant’s position was that she often filled in when people were on holidays and worked extra hours. It was a busy office and she had plenty of work. She was never offered any additional training. She was aware that there had been a downturn in the economy but redundancy or cost-cutting had never been mentioned to her or the other members of staff. The matrix had not been provided to the claimant prior to or at the time of her redundancy or during the Circuit Court proceedings and she first became aware of it during this hearing before the Tribunal. FCM’s position was that while the claimant started work early she did not clock out so there was no way to verify that she worked extra hours as she had claimed.
Determination
The Tribunal is satisfied that a genuine redundancy situation, within the meaning of section 7(2)(c) of the Redundancy Payments Acts 1967 to 2007, existed .
Different competences were required in the office and thus it was appropriate and reasonable to apply a matrix among the office staff while LIFO was applied among the drivers. The Tribunal accepts on the balance of probability that the claimant did not wish to resume full-time work. It finds that the claimant’s selection for redundancy was not unfair.
The Tribunal is not satisfied that the procedures adopted by the respondent in the redundancy process were entirely fair. It was only at the hearing before this Tribunal that the claimant first learned that her selection for redundancy was the result of the application of a matrix. In this regard and applying the broad discretion conferred on the Tribunal by section 6 (7) of the Unfair Dismissals Act 1977 as substituted by the 1993 Act the Tribunal finds the dismissal was procedurally unfair.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €7,500.00 in compensation under the Acts. .
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)