EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
- claimant UD115/2012
EMPLOYER - respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
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. Henry
heard this claim at Galway on 1st October 2013.
Respondent: In person
The determination of the Tribunal was as follows:-
The respondent is a limited company set up by A and his wife C. The company took over the running of Shop M in early 2011. The shop is a general convenience store with both hot and cold deli counters. S managed the shop and the claimant’s role was that of Trainee Manager. Full time staff were supported by part time staff. M worked part time and looked after office administration.
C also did administration work one day a week and A called to the store once a week.
In March 2011 K was recruited and worked full time alongside the claimant. By and large, both K and the claimant carried out the same type of work. K was paid one euro per hour less than the claimant.
After seven to eight months turnover fell and A was faced with a crisis situation. He had no money to pay his suppliers and pay wages. He was left in position where he could either close the shop or reduce expenses. The expenses were being carried by both himself and his wife. His wife put €10,000 into the company.
In November 2011 K knew that he had to make a saving. Two management positions were no longer viable in the business. He met with S and M firstly to discuss the financial situation, and then met the claimant. A felt the best course of action was to make the claimant redundant. At the meeting he had with the claimant he informed her that she was being made redundant, but that if things picked up again he would have no problem re-employing her. The claimant was paid her redundancy entitlement and other monies owed to her.
In hindsight, A contended he did the best he could at the time. The shop no longer needed two managers.
The shop closed down on or around the 13th of September 2013, with a significant debt.
The claimant was employed as a Trainee Manager and commenced employment in 2007. She worked in Shop M. Shop M was taken over by the respondent in early 2011 and her terms and conditions remained the same. She worked a 39 hr. week and worked alongside T and S, full time staff. Six to eight part time staff were also employed by the respondent.
The claimant was a key holder and she deputised for S in his absence.
In 2009 a motorway was built and there was a drop in business.
In March 2011 K was recruited and worked full time. K’s role and the claimant’s role were the same except that the claimant had more responsibility.
On 4th November 2011 during the course of a stock take of the shop A invited the claimant to a meeting. The claimant was aware that A had met both S and M a short time before this meeting. She had no notice of this meeting. At that meeting A told her that there were difficult times and he could no longer keep her on in the shop and that she would be paid two weeks notice.
The claimant was in shock and very upset and returned home. Had she been consulted she would have been happy to take a pay cut or a reduction of her hours of work. She was the longest serving employee in the shop. She was furnished with her P45.
The claimant subsequently sought legal advice and the company paid her redundancy entitlement.
After she was let go new staff were recruited for the Shop.
Since the termination of the claimant’s employment she secured part time work from 18th November 2011 to end December 2012. She has not secured alternative work since December 2012.
The Tribunal considered the evidence adduced during the course of the hearing.
The Tribunal accepts that the respondent’s business was under considerable financial pressure and had to make savings. However, the claimant was not put on notice that her job was in jeopardy. She was not given notice of the meeting on 4th November 2011 at which she was told she was being let go. The claimant was not afforded an opportunity to put forward proposals for maintaining her employment. The claimant would have been willing to accept a pay cut or a reduction of her hours of work.
In the absence of any agreed procedure or established practice, the employer is expected to demonstrate observance of some procedure. In this case, the respondent was unable to justify why the claimant was selected for redundancy, and why a more junior employee, doing the same work as the claimant, continued working for the respondent for a further twelve months. The Tribunal finds that the failure to follow fair procedures in the termination of the claimant’s employment amounts to an unfair dismissal. Accordingly, the Tribunal finds that the selection of the claimant for redundancy was unfair and awards her €19,000.00 less €4,277.45 redundancy payment already paid to her.
As the claimant received her minimum notice entitlement, the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal