EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1244/2014
CLAIM OF:
Liam McLaughlin
Co Donegal
against
Foyle Fishermen’s Co-Op Society Limited
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 11th February 20th June and 21/22nd September 2016
Representation:
Claimant: Mr. Dessie Shiels, Solicitor, 16 Academy Court, Letterkenny, Co. Donegal
Respondent: Mr Terry MacNamara, IBEC, Pier 1, Quay Street, Donegal Town, Co Donegal
Background:
The respondent company is a fishing co-operative enterprise located in the north west of the country removing and selling fish from a group of seven boats within the co-operative. Each owner of each boat is a member of the co-operative committee but the boats themselves are individual legal entities employing and paying their own crews.
The respondent employed three operatives, including the claimant, a General Manager (JOK), and Assistant Manager and two administration staff located in the office. The claimant was employed as a lorry driver / general operative from the 1st July 2002. His employment was terminated by reason of redundancy on the 6th June 2014 and he was paid and accepted his lump sum to that effect.
Respondent’s Case:
The chairman of the Committee (AMK) gave evidence. He explained that he owned and operated his own boat employing ten crew. As chairman he did not have any day-to-day dealings with the respondent that was the responsibility of the General Manager (JOK). JOK, in turn, brought any issues to the Committee who met regularly to discuss and decided if and what any action should be taken.
AMK explained the claimant was employed as a lorry driver and general operative but 70% of his time was taken up operating the lorry and specialised trailer. This trailer was equipped with a unique mechanism to remove the tonnage of nets from the fishing boats in order for them to be changed or repaired. A specific driving licence was required in order to drive this lorry of which the claimant was in receipt. AMK explained that when the claimant was absent an independent operator was hired to operate the lorry and trailer.
AMK told the Tribunal that the boats within the co-operative were out to sea for a week at a time but could and would land at harbours around the country. If repairs or a change of netting was required by these boats the claimant would drive the lorry and trailer to the location and carry out the operation.
In 2013 and 2014 the respondent incurred a financial loss of €1.2 million and €800,000 respectively. The committee of the respondent decided cost cutting measures had to be taken. It was decided the lorry would be put out to tender to a third party. In the future if any boat required the services of the lorry and trailer that would have to hire and incur the expenses themselves. When asked, AMK told the Tribunal that the respondent retained the trailer.
It was also decided that as 70% of the claimant’s duties involved the lorry and trailer a decision was made to make the claimant redundant. Much time was given to the location of the lorry during the course of the year. When asked, AMK said that it was a unanimous decision of the board to make two positions redundant, one the lorry driver and one general operative. It was talked about at board level for at least a year beforehand and that decision was not taken lightly.
JOK (general manager) told the Tribunal that the core business was that of fish selling, boats land and the fish is taken to the auction house and sold. The respondent gets paid commission for doing so. He said that the day-to-day running of the business was down to him but the board decide on policy and he reports to them.
He went on to explain that the lorry entailed high wages (including overtime) high maintenance and a cost that could be out-sourced to a freight company who could provide the service to fishermen and the cost was put back on the end user. He also stated that the claimant often worked over 50 hours a week.
JOK gave evidence of calling the claimant to a meeting and reading out a letter that had been prepared and which advised him of his redundancy. He was given time to consider it and called to a follow up meeting a few days later. It was obviously a very difficult time and the claimant did not except the situation. The claimant’s appeal against that decision was rejected.
The claimant spent most of the next few days talking to other members of staff; he asked about their licences and if they had proper certification to drive a fork lift and so on. He took tachographs from the truck and had to be asked four times to return the keys.
JOK told the Tribunal that the claimant continued to come to the pier every day after his redundancy, taking photographs, asking about boats and taking to the casual staff. On one day in particular JOK went into the packing area and he was there in the middle of it. There was a bad atmosphere in the place and he had to ask the claimant to leave. The claimant also spent a full afternoon in JOK’s office and he thought he might have to phone the Garda to get rid of him. He said that the claimant was not offered subsequent work (casual work) because of his behaviour.
MK a director and company secretary at the time of the redundancies told the Tribunal of hearing the claimant’s appeal along with two other directors. The claimant was offered representation but did not avail of same. They listened to all his grievances and considered what he had to say. They agreed to uphold the original decision and went into all the matters brought up by the claimant. They advised him of same by letter on 17th June 2014.
A retired accountant from the company highlighted certain costings for the financial years 2012 and 2013. The trading performance and revenues were falling and savings had to be made. Most of the respondent’s costs were fixed but this did not include the running of its lorry. The co-op could do without this unlike its forklifts. While he had no knowledge of individual situations the accountant was informed that the claimant spent eighty percent of his time using the lorry. Therefore decommissioning the lorry would lead to a saving and with the lorry would go its sole operator again saving labour costs.
Claimant’s Case
Under the heading Position the claimant was described in his terms and conditions of employment as a driver/general operative. That description was elaborated as follows: Your principal duties will be driving the net lorries and forklifts, transferring nets to and from boats and to and from storage and repair areas. You will be responsible for the care and maintenance of lorries and forklifts…….
When not required for the above duties you may be required to assist the other Co-Op staff, working as a general operative, handling fish, boxes, gear and in general maintenance of premises.
It was the claimant’s contention that he spent circa seventy percent of his working time on tasks other than involving lorry work. Lorry work consisted of driving it occasionally to various ports along the coast as well as pier and harbour movements at Greencastle where he was based. He listed his travels in 2013 using that lorry and also produced selected tachographs to indicate his workload.
While he was on a basic hourly rate and a fixed working week of thirty-seven hours and thirty minutes he frequently worked and got paid for overtime hours. The claimant estimated his average working week amounted to sixty hours as a lot of his time was dependent on tidal conditions and whether boats were in port.
Following a work place accident in 2007 the claimant’s relationship with the general manager deteriorated to such an extent that this manager only communicated with him by text messages. From that time onwards he felt generally victimised and mistreated by that manager and told the Tribunal that this poor relationship contributed to his subsequent dismissal.
The first he learned of his dismissal was when he was summoned to a meeting on 6 June 2014 when his estranged manager handed him a letter and proceed to loudly read it which bore the title Proposed Redundancies. The contents of that letter together with the explicit remarks of that manager left the claimant in no doubt that he had just lost his job. That letter signed by the manager read in part: I wish to advise you that unfortunately your position is to be made redundant ……Selection was not an issue in this instance as the role of lorry driver is unique in the organisation.
That letter gave the claimant six weeks’ notice of his termination and his P45 gave 20 June 2014 as his date of leaving. According to the witness this issue of his job being made redundant had not been aired or discussed with him during this process. His queries and appeal against it went unheeded.
Determination:
Dissenting opinion of Ms A. Moore:
Prior to taking up the post of driver/general operative the claimant was offered the position of driver of the net lorry but he refused it, as it was a part-time position. He was subsequently offered and accepted the position of driver/ general operative. This position was not redundant as only about 30% or his time was spent on net lorries and the bulk of his duties are still performed. I consider therefore that the claimant was unfairly dismissed.
Majority decision:
The statutory definition of redundancy is found in the Redundancy Payments Act 1967, Section 7(b) as amended by section 4 of the Redundancy Payments Act 1971 and section 5 of the Redundancy Payments Act, 2003 and provides that: an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to
(b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he/she was so employed have ceased or diminished or are expected to cease or diminish, or
The Claimant was employed in a dual capacity, as a net lorry driver/general operative.
The Tribunal accepts the Respondent’s evidence that most of his work was spent working with or driving the net lorry. It is accepted that the net lorry work stopped when the net lorry was sold. “Work of a particular kind” in this context can mean the dual role the Claimant held, ie, operating the net lorry and working as a general operative. Therefore the requirement of the business to carry out work “of a particular kind” diminished when the net lorry was sold because the net lorry work ceased even though the general operative work continued.
The fact that the Claimant’s work had diminished (albeit not ceased), allows the Respondent to consider his position as a whole, redundant.
From the definition above, with particular consideration to reason (b), the Tribunal by a majority decision finds that a redundancy situation did occur and therefore the claimants claim under the Unfair Dismissals Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)