UD1771/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1771/2014

CLAIM OF:                                                                                                           

Paul Ryan                                       

-claimant                                                                                                                                                                                                                                                                  

Against

Voodoo Web Solutions Limited

   -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms. M. Levey B.L.

Members:       Ms A. Gaule

                       Mr D. Thomas

heard this claim at Dublin on 11th February 2016 and 22^nd June 2016

Representation:

_______________

Claimant:                     Mr. Will Joyce, Business & Commercial Solicitors, 28 Lower Leeson Street, Dublin 2

Respondent:                Mr. Padraic Lyons B.L. instructed by, Ms Naomi Gardiner, Naomi Gardiner Solicitors, Burnaby Downs, Delgany Road, Greystones, Co. Wicklow

Respondent’s Case

The respondent is a digital marketing company. The claimant was employed from June 2012 until his employment was terminated by reason of redundancy in October 2014. Due to financial pressures the respondent offered the claimant voluntary redundancy which was rejected by the claimant.

The respondent indicated that a new contract which was issued in 2014 was a fair one and although the targets set were not discussed with the claimant, they were below industry norm targets. The respondent accepted that an ‘elaborate’ redundancy process was not carried out within the company.

At the time the claimant was made redundant the respondent employed six other staff members. JD, Director for the respondent stated that the claimant’s position was targeted as it was a sales role and he himself was able to step into that role. There was another sales employee at the time and although he commenced his employment after the claimant his sales often exceeded targets.

JD stated that the claimant’s concerns regarding targets, commission and support had been addressed. The claimant had access to PM for support and also M if it involved a ‘blue chip’ client. JD indicated that as far as the respondent was concerned, the claimant had accepted the new contract by his actions.

The external HR consultant, CR was employed by the respondent in 2014 and attended meetings with the claimant. She recalled that the claimant was informed of the financial status of the company although this was not reflected in the minutes. The only reference made to redundancy with the claimant was in the form of voluntary redundancy. The claimant informed her that he would not be signing the new contract as he was not happy with some of the contents. The HR consultant agreed that there was no consultation with the claimant regarding his termination by reason of redundancy.

According to the claimant, in February 2014 the respondent sought to reduce his commission. The new contract included targets and the claimant stated these were unreasonable targets. He raised a grievance in relation to issues around the new contract and after a number of months’, the claimant went on sick leave due to stress.

While the claimant was on sick leave he was dismissed by letter dated 24^th October 2014 on grounds of redundancy. The claimant indicated that no consultation process took place.  

Claimant’s Case

The claimant commenced employment with the respondent on the 25^th of June 2012 on the Job Bridge Scheme and his first contract commenced on the 2^nd of April 2013. The claimant was in a business development role which entailed generating business, selling services, and dealing with clients. The claimant and BG were in the sales/business development area. BG was given more help than the claimant; he had access to a company credit card, was given an industry report and among other things got mobile expenses. This put BG at an unfair advantage to the claimant.

The claimant ran into issues with M. He needed M’s input into proposals and quotes and as there was always a significant delay in M coming back with information the claimant’s ability to do his job was effected. The claimant brought this issue to the two Directors and they said they hired additional staff to free up M’s time and make operations run more smoothly. As M did not like the claimant this further gave BG an unfair advantage over him.

In February 2014 the respondent introduced new terms and conditions of employment which included sales targets for the first time. There was also a clause that stated that ‘failure to achieve the sales target for a quarter may result in the termination of your employment.’ The claimant objected to the sales targets as he could not meet them without M’s co-operation.   The claimant informed the respondent why he could not sign the new terms and conditions of employment so they brought in a HR Consultant to sort the issues out.

The claimant outlined all of his issues in various correspondences with the respondent and at a meeting on the 4^th of July 2014. The result of the meeting was the HR Consultant asking if there was a financial arrangement that could be made so resolve matters. Further amendments were proposed to the terms and conditions making the targets monthly instead of quarterly; the claimant was given a deadline of September 1^st to sign the document. The claimant declined to sign the new terms & conditions. BG was instructed to take over one of the claimant’s clients and none of the staff or management were speaking to the claimant by this point. The HR consultant was aware that matters had not improved between the claimant and respondent so suggested some sort of settlement; this was not suggested again after the 1^st of September 2014.

By email entitled ‘grievance procedure’ of the 9^th of September 2014 again the claimant outlined his issues.

The claimant was on sick leave (unpaid) at this point and was sending in medical certificates to the respondent. The only response was the dismissal letter dated the 24^th of October 2014. It stated ‘we are writing to inform you that your position will be terminated by reason of redundancy effective 24^th of October 2014, thus providing you with 1 weeks’ notice period.’ The claimant had been previously made redundant by the respondent in November 2008; the respondent fully utilised fair procedures when effecting that redundancy.

The claimant gave evidence of his loss and attempts to mitigate his loss.

The claimant does not agree with the company losses; he maintains there was another connected company that funds were being diverted into. The claimant accepts there was no alternative position for him but he had longer service than BG and was unable to compete sales wise due to the respondent giving BG unfair advantages.

Determination

The Tribunal is of the view that it was a genuine redundancy situation but sending a redundancy dismissal letter while the claimant was on sick leave without due process renders this an unfair dismissal under the Unfair Dismissals Acts, 1977 to 2007.

The Tribunal find an award of €3,000 as just and equitable, bearing in mind the fact that a redundancy amount was previously offered, the claimant’s lack of documentary evidence regarding mitigating his loss, and the deficits in the respondent’s procedures already outlined.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)