EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Desmond McGuire -claimant UD1320/2012
Sleedagh Farms Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Horan
Mr J. Flannery
heard this claim at Wexford on 28th May 2014
Claimant: In person
Respondent: Ms Juanita Brennan, IR/HR Executive, IBEC, Confederation House, Waterford Business Park,
Cork Road, Waterford
Determination on Preliminary Issue:
The representative for the Respondent submitted that because the claimant had made a claim in relation to his dismissal pursuant to s.13 of the Industrial Relations Acts and had received a recommendation from the Rights Commissioner in respect of same pursuant to section 8(10)(b) of the Unfair Dismissal Act, 1977 as amended by the s.7(d) of the Unfair Dismissals (Amendment) Act, 1993 the Tribunal had no jurisdiction to hear the claim for unfair dismissal.
Section 8(10)(b), as amended provides as follows:-
“Where, in relation to a dismissal, a recommendation has been made by a rights commissioner, or a hearing by the Labour Court under the said Acts has commenced, the employee concerned shall not be entitled to redress under this Act in respect of the dismissal.”
The Tribunal finds that the claim brought by the claimant pursuant to the Industrial Relations Acts 1946-2004 and in respect of which the claimant received a recommendation was not a recommendation in relation to a dismissal per se but was a recommendation in respect of a claim regarding the claimant’s contractual entitlement to an enhanced redundancy sum. In his evidence to the Rights Commissioner the claimant did not put his dismissal in issue but merely sought a determination regarding his entitlement to an enhanced redundancy sum. The Tribunal notes that a claim in respect of an entitlement to an enhanced redundancy sum may be brought pursuant to s.13 of the Act of 1946 even where there is no dismissal. A claim in respect of a contractual entitlement is a claim that can never be brought to the Tribunal under the Unfair Dismissals Acts 1977-2007.
The Tribunal notes that the purpose of the new section 8(10) as amended is to prevent a claimant litigating the same claim in different fora, other than by way of appeal, and it does so by prohibiting explicitly the processing of a claim under both pieces of legislation. Section 8(10) as amended thus removes the problems that arose in cases such as Sutcliffe v McCarthy  2 I.R. 48 where cases for unfair dismissal had been processed both under the Unfair Dismissals Acts and the Industrial Relations Acts. However, as already noted above, the claimant in the instant case did not process a claim regarding his dismissal under the Industrial Relations Acts but rather processed and received a recommendation in respect of a claim regarding his entitlement to an enhanced redundancy payment.
Accordingly, the Tribunal determines that it is not prohibited by section 8(10)(b), as amended, from hearing and determining the claim for unfair dismissal. The Tribunal further determines that the award made to the claimant by the Rights Commissioner in respect of an enhanced redundancy sum falls to be dealt with in the same way as an award of a statutory redundancy lump sum received by a claimant and who pursues a claim for unfair dismissal.
Summary of Substantive Issue:
The claimant is a butcher. The respondent company initially comprised of a factory and a farm for breeding cattle. The factory was set up to produce sausages and bacon products for sale via an associated company which operates a chain of supermarkets.
A director of the respondent company (who is also Managing Director of the associated company) gave evidence to the Tribunal. In or around 2006 it became difficult for the respondent’s products to compete on price. Consumers purchased cheaper products and the respondent’s sales decreased. A number of positions were made redundant including the Factory Manager position. The subsequent restructuring and streamlining of the factory (it now produced solely sausages) ensured the viability of the company for a period of time. The claimant and one other butcher were now the sole employees working in the factory. They produced, packaged and delivered the sausages.
The respondent company suffered a poor trading year in 2011 due to product competition. Consumers were purchasing on price rather than on quality. In addition, machinery in the factory needed to be replaced. The factory was not viable and a decision was made by the witness to close the factory. A decision was taken that the production of the sausages would be outsourced to Company D. The claimant’s colleague was offered a position with Company D but the director told the Tribunal he had no involvement in this offer of work being made.
The director and a Human Resources Manager from the associated company met with the claimant on 16 April 2012 to inform him of the closure of the factory. This was a brief meeting. The claimant was not informed in advance what would be discussed at the meeting and he was shocked. The witness told the Tribunal that there were no alternatives available at the time either in the respondent company or in the associated company. However, it was acknowledged by the Human Resources Manager and the director that they did not outline to the claimant that they had discussed alternatives. The director refuted that the failure to offer an alternative to the claimant was related to a personal injuries claim which the claimant had brought against the respondent following an eye injury at work
The Human Resources Manager confirmed in evidence that she discussed with the director whether an alternative position for the claimant was available in the associated company’s supermarkets. She discussed roles both in the meat department and in deliveries with the director but nothing was available. There was no discussion with the claimant regarding alternatives. The claimant confirmed this in evidence. The claimant noted that his colleague now performs an identical role in Company D, where the respondent’s product continues to be produced, to that which he performed for the respondent company. The claimant further noted that the respondent’s label attaches to products being sold in the supermarket chains operated by the associated company. Photographs were opened to the Tribunal to support this assertion.
Determination on the Substantive Issue
Having considered the evidence of the parties adduced at the hearing the Tribunal finds that the respondent reorganised its business in order to be able to offer its customers a competitive price while at the same time maintaining a high standard quality product. The result of this reorganisation resulted in the redundancy of the claimant and accordingly the Tribunal finds that a genuine redundancy situation existed.
However, the Tribunal finds that the redundancy of the claimant was not effected in a fair or reasonable manner for the following reasons:-
1. There was an absolute failure by the respondent to adhere to any procedures, fair or otherwise.
- There was no discussion whatsoever or howsoever with the claimant in advance of the decision to make him redundant. The claimant was simply told that he was being made redundant.
- There were no discussions as to the possibility of alternatives to redundancy. On this issue the Tribunal notes that the respondent owned other entities where the claimant could have been redeployed to and whereas there may have been no suitable vacancies at the time of the redundancy there could have been at some future date. Whereas the respondent may not be obliged to do this taking into account the length of the claimant’s service with the respondent it would have been reasonable in the circumstances of the instant case for the respondent to have at least discussed this possibility with the claimant.
- The claimant was not offered a right to appeal the decision to make him redundant.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €10,000.00 over and above the statutory redundancy lump sum already received by the claimant and over and above the sum of €6,500 already paid to the claimant in respect of the award made by the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal