EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD139/2014
CLAIM OF:
Irina Valukevica
- Claimant
against:
Donnelly Fruit & Veg Food Central
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O’Carroll Kelly B.L.
Members: Mr J. Horan
Mr. T. Brady
heard this claim at Dublin on 7th May 2015 and 5th December 2016
Representation:
Claimant: Katarina Valiukevic, 57 Forest Field Road, River Valley, Swords, Co. Dublin
Respondent: Mr. Laurence Masterson BL instructed by: Conor O’Toole, Solicitors, Moorefield Business Centre, Moorefield, Newbridge, Co. Kildare
This case was heard in conjunction with TE31/2014 and both orders should be read in tandem.
The decision of the Tribunal was as follows:
Background:
The respondent company is a family run business, founded in 1979, supplying fruit and vegetable to its supermarket clients. There are three sections of the business. The claimant was employed in the Pack House area. There was no formal HR department in place at the time in question and matters were dealt on an informal basis.
The appellant was employed as a Pack House Worker from the 17th March 2008 to the 16th December 2013 when she was made redundant. She worked the 8a.m. shift and was paid a weekly wage of €321.32.
Respondent’s Case:
The General Manager (BD) gave evidence. He explained that the supply of fruit and vegetables to supermarkets was a very demanding business. The products had a short shelf life and tenders had to be submitted to potential clients continuously. Clients wanted the best deals they could get.
Over time customer demands on products changed and they wanted deliveries made at different times. Management decided that a change in operations would have to take place to cater for the changing needs of their clients. An earlier start and a later start were the two options considered. It was decided a trial run would be carried out. Meetings were held with staff to inform them of the impending changes.
BD told the Tribunal that eight of the claimant’s colleagues on her shift did not want to change their shift pattern and as there were no alternative positions they accepted a redundancy payment.
In August 2013 the trial run began with an earlier start. However it transpired that there was not enough work for the staff on that shift to carry out. The second option was trialed. During this time the claimant continued to work the morning shift as there was work for her to carry out.
On the 25th September 2013 an Employee Forum Meeting was held where various issues were discussed including new shift patterns. Each employee’s involved would be dealt with on an individual case basis. These meetings were held between management and staff from each division of the company. These staff members who attended would then inform their colleagues of the contents of these meetings.
On the 30th of September 2013 positions in respect of the night shift were advertised to all staff.
On the 8th of October an incident occurred regarding the claimant. The volume of work to be carried out by her shift depleted and management told the shift workers to go home for the remainder of the day. The claimant refused and joined another line at 2.30p.m. BD and the claimant’s Supervisor (OS) approached her asking her to leave the line. BD told her he would pay her even though he was sending her home. Again she refused and sat in the canteen for the remainder of her shift. She went home at 4.30p.m.
BD read into the Tribunal record a memo, dated the 8th of October 2013, regarding the events that had occurred with the claimant on that day.
On the 9th of October 2013 an Employee Forum Meeting took place regarding the new shifts, namely, the morning shift the claimant worked on, and the issue that this shift was “now at risk”. Minutes of this meeting were placed in the canteen for all staff to read. Staff meetings also took place to inform them their jobs were at risk. The staff, in turn, were given the opportunity to offer feedback and suggest alternatives.
On the 22nd of October 2013 an Employee Forum Meeting took place. BD read Minute 1(c) into the Tribunal record which stated:
“Meetings took place with the staff that know their jobs are at risk. We gave them a chance to voice their feedback and suggest alternatives, having reviewed their comments we, as the business, can no longer guarantee the 8 hrs they are looking for on the morning shift, no other alternatives are available except for the night shift. The business no longer requires staff for the morning shifts, so this unfortunately means we have to go on to phase 2, which means the business will have to put these positions at risk and possibly redundant.”
Staff were advised of the outcome of the meeting at meetings with their representatives. The claimant met with her Supervisor (OS) on the 23rd of October 2013. A letter dated the same day from OS to the claimant advised her she was being served redundancy notice and was not required to attend work. A final consultation meeting would take place on the 6th of November 2013.
The claimant turned up for work the following day – the 24th of October 2013 accompanied by her husband. They refused to leave when advised by security. The Security Officer contacted BD who informed the Security Officer that he would call the Gardaí as the situation was becoming heated. Eventually the claimant and her husband left.
A consultation meeting was held with the claimant by OS on the 6th of November 2013. Consultation meetings with colleagues of the claimant also took place that day.
OS again meet the claimant who was accompanied by her daughter (representative at the EAT hearings). Issues arose at these meetings regarding the claimant wanting a qualified translator and her requesting to tape the meeting. The request to record the meeting was refused.
A letter dated the 18th of November 2013 notified the claimant her position was redundant and informed her of her entitlements. The claimant was given the right to appeal the decision which she invoked.
An appeal meeting took place on the 29th of November 2013. The decision to make her redundant was upheld.
The final payments were submitted to the claimant on the 12th of December 2013. The claimant accepted and cashed her redundancy cheque.
Under cross-examination BD stated, when put to him, that all staff were aware of the Employee Forum Meetings and the fact that the minutes of these meetings were posted in the staff canteen for all to read.
When put to him BD said that the claimant had not applied for the night shift position. The claimant had not wanted to engage in any discussions and therefore that, or any, alternative could be discussed.
The claimant’s Supervisor (OS) gave evidence. She gave details of her duties as Supervisor in the respondent company.
OS told the Tribunal that she was notified by her Manager in mid-July that there would be significant changes in customer delivery times. She, in turn, discussed the matter with her team the following week during their morning meetings / “huddles”.
On the 12th of August 2013 the claimant wrote to OS regarding a staff meeting she had attended regarding the change in shifts. The claimant requested answers to two questions:
“1. When I finally get legal contract, because from March 2008 until today (respondent named), for unknown reasons, does not want to give it to me.
2. Due to transition to the shift (night) operation will the company comply with the following regulations:
a. Organisation of working time; Act 1997.
b. Statutory Instruments S.I. No. 299 of 2007.”
OS told the Tribunal that this letter was handed to her colleague (JMcA).
It was decided to trial the early shift time of 6a.m. On the 19th of August 2013 the claimant informed another Supervisor she would not be doing the early start. The early trial began a week later. For the first six days the claimant arrived for duty at 7a.m., on the Sunday she arrived at 6a.m.
On the 9th of September 2013 a second line was introduced but an issue arose regarding quality. As the early shift was not working it was decided to trial the night shift. OS told the Tribunal that she was personally against this shift. All staff were informed of the change in shift following an Employee Forum Meeting. On the 30th of September 2013 positions were advertised on the night shift. The claimant continued to work on the morning shift as there was still work available.
On the 8th of October 2013 an issue arose with the claimant. OS and BD spoke to the claimant. The following day an Employee Forum Meeting took place where the claimant’s shift was discussed.
On the 15th of October 2013 OS met with the claimant who informed her that she, the claimant, would not discuss anything with her but requested a letter. On the 23rd of October 2013 OS again met with the claimant who again refused to speak to her and told OS she, the claimant, did not recognise OS as her Supervisor. The claimant again requested a letter. OS told the Tribunal that as the claimant refused to speak to her she had no opportunity to discuss any issues including any alternative to redundancy. OS informed the claimant that she was being put on garden leave. The claimant replied that she would not leave without a letter. Having discussed the matter with JMcA, OS wrote the requested letter but the claimant refused to accept it from her. The letter was posted to the claimant’s home address.
The following day the claimant attended work accompanied by her husband. They refused to leave when advised by security but left when told the Gardaí had been called.
Under cross-examination OS reiterated that she had been unable to discuss any issues with the claimant regarding her position or any alternatives to redundancy as the claimant refused to speak to her.
Claimant’s Case:
The claimant gave detailed evidence of her employment history with the respondent working on a number of different machines and “lines”. She told the Tribunal that she had worked on “whatever management asked her to do”.
The claimant explained that she had a medical condition at the time relating to her eye. The respondent was “well aware” of this condition and they knew, she said, that it was best for her to work on the label line because of it.
In May 2014 changes began to occur in the staff rostering. The claimant said she approached the Administrator to question these changes when she received no verbal answers to her question, she requested the answers in writing. She attended a meeting with BD where it was agreed she would remain working on the label line and working the same hours.
The claimant told the Tribunal that she was not made “personally” aware of the changes occurring in the factory. When she did become aware of changes being introduced she wrote to the respondent on the 7th of October 2013 asking if the company would comply with the specified regulations. (This letter was opened to the Tribunal in full which OS signed receipt of this letter on the same date.)
The claimant told the Tribunal that she understood that if she would agree to working the night shift, the respondent would send her for a medical assessment to ascertain if she was fit to work that shift.
When she was asked by the Tribunal if the claimant was asking to be sent for a medical before she decided to commence the night shift, the claimant replied yes.
Following this the claimant said she saw “big changes in the Pack House”. She was not offered any night or p.m. shifts. She approached the Administrator and again received no replies to her questions. She then approached the Manager and requested the answers to her questions in writing. She was told to speak to BD. She did not receive any such correspondence.
Having attended a meeting with another member of management the claimant instigated the company’s grievance procedure in September 2013. The issue was investigated and dealt with in the Labour Relations Commission.
In October 2013 she attended work but was advised through the morning that she and her colleagues were being sent home. Other employees remained operating other lines. She told the Tribunal that she approached her Administrator to ask why she was being sent home but was “told nothing”. She requested a letter from the Pack House Manager to state why she was being sent home. When he could not give it to her she approached BD who requested her to attend a meeting. She attended a meeting with BD and her Manager but said she did not receive any answers to her questions.
The claimant told the Tribunal that she felt she would never get any answers to her questions. She said that she had wanted to see what, if any, were the alternatives to her redundancy but was “too scared” to attend meetings due to an earlier alleged incident with one of her Managers.
The claimant gave evidence of her efforts to mitigate her loss of earnings.
When asked if she had refused to speak with OS on a number of occasions the claimant replied that she that she had not refused, she was scared.
When put to her was she aware of the changes in shifts she replied that she had not been made personally “fully aware” but agreed she had attended the morning “huddles” with other staff when various work issues were discussed.
When put to her that BD and OS tried to negotiate an alternative to redundancy with her in good faith but she had no wanted to participate, she replied that she had engaged, writing letters, but no one had replied to her.
A former colleague (DS) of the claimant gave evidence. He explained that he had worked with the claimant and had travelled to work with her. He stated that he had been offered two options in relation to his employment – and early shift or a night shift. Following the trial periods it was the night shift that was available to him. He told the Tribunal that he had decided not to take up the alternative night shift as it had not suited his personal family circumstances. He accepted a voluntary redundancy package.
When asked had he ever been offered part-time work, he replied no. When asked by the Tribunal if he had discussed work issues with the claimant, he replied that he had. He had told her of his decision to take the voluntary redundancy package as the shifts offered had not suited him and his family. DS told the Tribunal that the claimant told him that she “did not know what to do”. The claimant also told him that she was “ready to work” but did not know if she could work the night shift.
Determination:
The claimant commenced her employment with the respondent in March, 2008. She worked on the packing line. In mid 2013 the respondent’s clients changed their order times. This had a knock on effect on the respondent’s shift patterns. In order to meet their orders in time they had to establish a night shift. Prior to this there was only a morning shift. Customer orders were being placed between 4pm and 10pm. Those orders had to be picked, loaded onto the trucks and delivered by morning. It soon became apparent that there was no longer a need for a morning shift. The respondent commenced a long consultation process where the needs of the company were discussed with the employees and the employees in turn discussed their needs and wants in relation to the purposed new shift patterns. Every morning (at the morning huddles)for several weeks the proposed changes were discussed. The information was also discussed at the employee forum meetings and was placed on the staff notice boards. The majority of the staff were opposed to the night shift. The respondent agreed to trial an early morning shift for a few weeks. It didn’t work. It simply wasn’t possible to process the orders in the time allotted. Mistakes were being made because staff were under time pressure. Customers were starting to complain. It was then decided to trial the night shift. That shift did work. After the trial period many of the staff agreed to move to the night shift. The claimant, having refused to engage with the respondent in relation to the change of shifts, refused to move to the night shift. The claimant’s evidence that she did not know about the proposed changes is not creditable. Documentary evidence was adduced at the hearing which showed that the claimant was fully aware of the proposed changes.
The claimant continued to come in for her morning shift despite the fact that there was no morning shift for her to work on. When asked to leave she refused to do so. She sat in the locker room until her shift finished at 4.30pm. She became obstinate and obstructive. She stated in evidence that she became frightened of one particular member of staff however there is no corroborating evidence of that statement. She demanded written meeting agendas to be sent to her. She demanded that the process and the respondent’s compliance with various statutes be set out in writing. She attempted to record meetings. She attended at her work place when she was placed on garden leave and pushed her way onto a line where she was not scheduled to work. When asked to leave she refused to do so. An Garda Siochana had to be called to assist the respondent removing her from the premises.
The complainant requested that a medical assessment be carried out pursuant to S.I. 299/77. Due to the fact that she was refusing to engage with the respondent at all such request was denied.
The claimant made numerous allegations against the respondent during the hearing, none of which were actually relevant to the matter in issue and none of which were put to the respondent during cross examination. On that basis the tribunal are ignoring the allegations.
The Tribunal is satisfied that a genuine redundancy situation existed at the material time and that a full and informative consultation process was conducted by the respondent. Staff and management all worked together in a meaningful way to try and come up with a solution that best suited everyone. The claimant, for her own personal reasons chose to disengage from that process. Furthermore, the complainant, despite having an obligation to do so, did not exhaust the internal process prior to lodging her claim with this Tribunal.
In all of the circumstances the claimant’s case fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)