UD193/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                         CASE NO.

Fergus Lally                                                                                                                UD193/2015

• Claimant

  against

  Kylemore Abbey & Gardens Limited

• Respondent

  under

  UNFAIR DISMISSALS ACTS 1977 TO 2007

  I certify that the Tribunal

  (Division of Tribunal)

   

  Chairman:   Ms C. Egan B.L.

  Members:     Mr T. Gill

                        Ms H. Murphy

   

  heard this claim at Galway on 19^th May 2016

                                             and 11^th July 2016

   

  Representation:

  Claimant:         Mr Alastair Purdy, Purdy Fitzgerald Solicitors, GFSC, Block 1

  Moneenageisha Road, Galway

  Respondent:    Mr. Fiachra Breathnach BL instructed by:

  Eugene F Collins, Solicitors, Temple Chambers, 3 Burlington Road, Dublin 4

   

  The determination of the Tribunal was as follows:-

   

  PL, the chief executive officer and director of the respondent company gave evidence. He commenced employment with the respondent in November 2013. PL gave the Tribunal a detailed history of his employment history and experience in this type of business. PL told the Tribunal that he was hired to redevelop the retail business of the iconic Kylemore Abbey. When he commenced his duties he decided he would have a more “hands on” role within the retail business.

   

  The claimant was employed from June 2010 as an assistant retail manager in the craft shop of the business located at Kylemore Abbey in Connemara. The craft shop, tea room and visitor’s centre was leased by another company from 2013 until December 2014 to a company owned by the claimant’s brother, JL. JL applied to extend the lease, but it was decided it would return to the respondent company. The lease expired on the 14^th December 2014 and the respondent took over the following day.

  PL told the Tribunal that all members of staff, with the exception of two members, transferred from JL to the respondent company. However, all assets did not transfer, namely a van owned by JL’s company which the claimant used for deliveries, to pick up stock from the warehouse in Moycullen and to deliver and retrieve post for the Abbey. PL and JL met the staff on the 10^th November 2014 to inform them of the change of employer.

   

  In late November 2014, the claimant approached PL to tell him that members of staff were enquiring of the claimant if he would be leaving his employment now that his brother, JL, was no longer the employer. PL said he told the claimant that under the lease agreement all staff would transfer to the new employer, but he PL, was waiting to discuss the matter with the retail manager, LS, who was due to return from maternity leave in January 2015. PL told the claimant he would get back to him and also informed him that JL’s van would not transfer to the respondent as they would now use a courier service.

   

  On the retail manager’s return in January 2015 PL discussed the running of the business with her. PL told the Tribunal that a decision was made, ultimately by him, that the claimant’s role was “surplus to requirements” and that he would be made redundant.

  On the 16^th January 2015 PL met the claimant and indicated to him that his position was no longer required within the business and that the claimant would be made redundant. The claimant agreed to work until the following week and was paid in lieu of notice until the 13^th February 2015. The claimant was paid and accepted a cheque to the value of €6,240 in respect of statutory redundancy.

   

  On cross-examination PL said it was ultimately his decision to make the claimant redundant. Another employee, who was the personal assistant to the previous employer JL, was also made redundant. PL explained that when he was hired, the respondent was going through a difficult financial period and his role was to review its operations. Having examined the retail business accounts and turnover, the decision was made to make the claimant’s position redundant.

  When asked on what basis he decided which position to make redundant, he agreed that the L.I.F.O. (last in first out) process was not used. PL said it was “just the position”.

LS gave evidence of her role as retail manager which she commenced in January 2012. Her duties included purchasing, securing and managing stock. The type of stock was chosen in January for the year and was replenished throughout the year. While LS was on maternity leave in May 2014, the claimant ran the shop until her return the following January. When she returned she was informed that the company had lost the contract and there was going to be a Transfer of Undertaking. At a meeting with PL she was informed that the position of assistant manager was to be made redundant as PL was going to take a more active role in the daily running of the business. In cross examination LS accepted there was no alternatives to the redundancy put forward at the meeting. She went on maternity leave again in October 2015 and her duties were performed by PL and two other members of staff until her return in May 2016.

The claimant gave evidence of being asked to manage the shop from 2010 to 2011. The business grew steadily. In November 2014 a meeting was held where all staff were informed that the contract to run the business had been lost, but that their jobs were safe as there was a Transfer of Undertaking. The claimant approached PL as he was anxious about rumours that some jobs “weren’t safe”. He stated that PL reassured him that there was no truth in the rumours. On January 16^th 2015 PL asked the claimant to meet him in an area near the restaurant. The claimant stated that PL told him that he “no longer needed him” and that his job was gone. When the claimant queried the selection process he was told that it was his position as assistant manager that was being made redundant. The claimant stated that he was in shock, moreover as he was about to apply for a mortgage. The claimant did not anticipate that the meeting would concern such a serious matter because of the casualness of the location and there being no prior indication that his job was in danger. He had relied upon the respondent’s assurances that his job was safe.

The claimant accepted a cheque for redundancy under protest. He was on a salary of €38,000 per annum and worked a forty hour week. In cross examination the claimant stated that a letter sent on 10th November 2014 informing him of an imminent reduction in his working hours had in fact no impact on him as his hours didn’t decrease thereafter. He clearly remembers PL assuring him his job was safe in a meeting in the canteen in October 2014. He finished working for the respondent on 25^th of January 2015 and has since applied for other jobs but with no success. He set up small business selling jewellery but it has proved an unsuccessful venture. In February 2016 he attempted to set up a chauffeur business.

Determination

The onus is on the employer to justify the selection of an employee for redundancy. An employer must be able to justify why that particular employee was selected for redundancy, and it must do so, in so far as possible on objective grounds. Consideration must be given to alternative employment within the organisation for an employee who would otherwise be made redundant.

The Reasonableness of an employer’s conduct is an essential factor to be considered in the context of all dismissals, including redundancy dismissals. The Unfair Dismissals (amendment) Act 1993 states “…. In determining if a dismissal is an unfair dismissal, regard may be had…to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

In the present case the Tribunal noted that there was no consultation with the claimant prior to the decision to make his position redundant. The claimant had been previously assured that his job was safe. He had no advance warning of the meeting with PL on the 16^th January 2015, which took place in an open area in the respondent’s restaurant. He had no intimation of the gravity of the subject matter. He was given no right of representation at the meeting and no right of appeal of the decision to dismiss him by reason of redundancy. He was offered no alternative employment. There was no redundancy procedure in place and there was no consideration given to L.I.F.O. policy.

By reason of the foregoing, and having regard to all the circumstances, the Tribunal finds that the manner in which the dismissal was effected was unfair and unreasonable. The Tribunal finds that the claimant’s dismissal was unfair and awards him €76,000 in compensation under the Unfair Dismissals Acts 1977 to 2007. This amount is in addition to any redundancy payment already paid by the respondent.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)