EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1143/2015
CLAIM OF:
Michael Murray
- claimant
Against
ISS Ireland Limited T/A ISS Facility Services
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Carrick-On-Shannon on 21st March 2016 and 20th June 2016
Representation:
Claimant: Mr. Simon Donagh BL, instructed by Ms Emma Brennan, Kevin P Kilrane & Co, Solicitors, Mohill, Co Leitrim
Respondent: Mr Declan Thomas, IBEC, 3rd Floor, Pier One, Quay Street, Donegal Town, Co Donegal
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is a leading provider of facility services which includes security, cleaning and pest control. The respondent has 4,000 employees in Ireland most of which are engaged in contract cleaning and security.
GMcA is the General Manager for the country. The claimant was employed as a pest control technician who worked in the north west of the country. The pest control and prevention division looks after hotels, restaurants and pharmaceutical companies. The office staff allocate jobs into an area. A service manager (N) supervises and ensures visits are completed. The majority of customers have eight visits per year. Each technician has to have enough work and if someone needs help staff can be re-assigned to that particular area.
The claimant was a great worker.
The respondent had to restructure as a result of the recession. The recession led to unpaid customer bills. The witness was constantly looking at making things more efficient and productive. The north west area was overstaffed. Staff are transferable within reason.
The respondent had to make one employee redundant in January 2013 in the area adjacent to the claimant’s area.
Following an analysis carried out by the respondent two areas were identified where the customer level did not merit the staff. The criteria used was geographical.
To have staff working in an area €80,000 to €85,000 must be taken in. The claimant’s area was down to €56,000 and the adjacent area down to €52,000. Every area was looked at.
On 19th March 2013 the witness met the service manager and the claimant. The witness informed the claimant about the company’s restructuring and that his area was no longer viable and his position was to be made redundant. The claimant was upset and angry. By letter dated 20th March 2013 the witness confirmed the decision to make the claimant’s position redundant. He accepted that alternatives were not considered prior to the notification to the claimant of his position being made redundant. The claimant was not required to work during the notice period. The witness however undertook to endeavour to source alternative employment within the business over the following four weeks but in the event that would be unsuccessful he explained that the claimant’s employment would cease to exist on 16th April 2013.
The following day the claimant contacted HR with alternative options:
3 days in the van and 2 days on sales
3 day week (for a time which could be reviewed when/if business recovers)
Travel to Dublin to support the Dublin technicians
Taking ownership of the new contract - Department of Defence.
A suitable alternative position could not be found. The claimant’s employment was terminated on 16th Aril 2016 by reason of redundancy.
Claimant’s Case:
The claimant commenced employment in mid November 2007 in the role of Pest Control Technician.
In around March 2012 a discussion took place concerning the viability of his role. The claimant put alternatives forward and his job was maintained. He took on additional duties at that time. He took on a dual role for six months. The second role was that of washroom assistant. After six months the washroom assistant position was outsourced and he reverted to his role of pest control technician full time.
In March 2013 PB was made redundant. A certain amount of his portfolio was allocated to other technicians.
On 19th March 2013 the claimant received a telephone call from GMcA informing him that he was being made redundant. He was upset and angry and taken by surprise. The service manager took equipment out of his van. The following day he contacted HR and put forward four alternatives with a view to saving his job. By letter dated 26th March 2013 HR informed him that the alternatives were not viable and would not provide the savings needed by the company.
The claimant’s employment terminated on 16th April 2013 by way of redundancy. His redundancy payment amounted to €5,747.47.
He was not offered an opportunity to appeal the decision to make him redundant.
The claimant then sought legal advice and had no further contact with the respondent.
He secured alternative employment in May 2014.
Determination:
The burden of proof falls on the employer to convince the Tribunal that the dismissal of any employee is fair in all the circumstances.
In this particular case the respondent claimed the employee was dismissed by reason of redundancy. While full financial information was not available the Tribunal is satisfied on balance that a redundancy situation existed. However, the duty of the employer in such a situation is to make a fair selection for redundancy and follow fair procedures in so doing.
The Tribunal is not satisfied with procedures followed by the respondent insofar that they did not follow procedures in their own handbook nor did they afford the claimant the right of appeal to make him redundant. Along with the failure to follow fair procedures the respondent did not carry out any comparative analysis, did not consider any other skills the claimant possessed and should have considered redundancy in the overall context of the workforce.
The Tribunal finds the dismissal of the claimant was unfair and considers compensation to be the appropriate remedy. In all the circumstances of the case, taking into account the redundancy paid to the claimant and evidence of mitigation of loss, the Tribunal awards the claimant €14,500.00 in compensation which is in addition to the redundancy already received by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)