EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Claire Merity – Claimant UD814/2013
Declan Dolan and Eamon Garvey practising as DCA Accountants - Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr M. Noone
Ms M. Mulcahy
heard this claim at Dublin on 2nd July 2014
Claimant : Mr Frank Crean B L instructed by
Morrin & McConnell Solicitors, Trident House, Dublin Road, Naas, Co. Kildare
Respondent : Mr Conor Power B L instructed by
Leman solicitors, 8-34 Percy Place, Dublin 4
The determination of the Tribunal was as follows:
The respondent operates a chartered accountancy business that providers a wide range of business services to its clients. One of its two partners outlined the background and reasoning that lead to the termination of the claimant’s employment by way of redundancy. For several years up to late 2013 the business was divided into two departments-namely the accounting section and the bookkeeping section. The latter section was called the bureau and dealt with the day-to-day business of its clients. The head of that department carried the title of bureau manager. In addition to those two departments the respondent also had an office manager whose function was to attend to general administration matters.
The respondent recruited the claimant in early 2005 giving her the title of office bureau manager. Notwithstanding that title the witness told the tribunal that there was a clear separation of roles and persons between the office and bureau manager. The claimant who was described by the witness as an excellent employee was the bureau/bookkeeping manager and another individual was the office manager. At all times the bookkeeping department had no more than five staff, that number fluctuated according to its business requirements. During the early and middle years of the 2000s that section underwent growth as its client base and operations expanded. Due to the claimant’s pregnancy and subsequent maternity leave the respondent hired another person in early 2012 on a fixed term contract for that section. While he was to replace the claimant during her absence this new recruit was taken on as an accounts technical which attracted a lower remuneration than the claimant. Between January and April 2012 when the claimant’s maternity leave commenced she worked alongside this person assisting and guiding him on several tasks. At the same time another employee worked there as a trainee accountant.
Between her maternity and other leave the claimant was due to return to work on 3 December 2012. Prior to that date there was communication between the witness and the claimant relating to work issues. The witness sought a meeting with her in order “to discuss everything”. That meeting took place on 26 November 2012 in a coffee shop. At the meeting the witness asked the claimant to move to a technician role which entailed a significant drop in her overall remuneration. The claimant voiced her refusal to take that cut. Another option put to her was to work three days a week but no actual specifics on that proposal were discussed. Redundancy was also mentioned as an option.
According to the accounts submitted by the witness there was a marked deterioration in the financial health of the bookkeeping department in recent years. The “writing was on the wall” as far as its commercial viability was concerned and the respondent was considering closing that section. In an effort to halt and improve that section’s poor financial situation the respondent felt it necessary to involve the claimant in a cost cutting exercise.
The witness acknowledged he did not notify the claimant of the subject matter prior to their meeting. He described that meeting as amicable. Within a short time he was informed by the claimant that redundancy is now what she wanted. As a consequence the respondent almost immediately extended the contract of the fixed term employee. Since the claimant did not have the required skill set to work in the accounting department the only alternative for her was to continue at a lower level with less pay and this she was not prepared to do. At the end of 2012 there was no need for a bureau manager. That department was eventually dissolved in late 2013 and all its remaining functions were subsumed elsewhere. The respondent conducted further redundancies that year. The witness felt that the claimant’s redundancy was undertaken with some regard to its stated policy on that topic but was also done on an ad hoc basis.
The witness was astonished and shocked to learn of the claimant’s application and complaint against the respondent when it was first mooted in May 2013.
The claimant told the tribunal that when she realised her temporary colleague had taken over her role and effectively replaced her as manager of the bureau she decided some action was necessary. Her remuneration package included a bonus payment subject to targets being met. Up to October 2011 when she received her last bonus she had always been the recipient of such regular payments. When she informed the respondent of her pregnancy the claimant was involved in the temporary recruitment of an appropriate replacement. By the end of that year a suitable candidate had been appointed and during the period up to the commencement of her maternity leave she “trained him up” and handed client files and portfolios over to him.
The claimant was taken unawares at the contents of the meeting she had in late November 2012 with one of the partners. At that meeting she was not asked to put forward alternatives and a three day week was not mentioned. At the conclusion of that meeting she spoke to her partner and felt she had no real choice in the scenario presented to her. She received and accepted a statutory redundancy payment on 24 December 2012 and her employed ceased one week later.
A former colleague who worked alongside the claimant and the temporary employee stated that this employee replaced the claimant in the bureau when she left.
When considering and deciding on a redundancy issue an employer is obliged to focus on the job and role subject to that redundancy as distinct from the person holding that job and role. There is little doubt that in 2012 the respondent was experiencing financial difficulties pertaining to its bookkeeping department. This decline in its revenues coincided with the claimant’s maternity and other leave. Meeting the claimant while she was still on leave and in such an informal way was not the ideal way to impart important business information to her. At the very least the proposed nature and subject of that meeting should have been relayed to her prior to that encounter or upon her return to work
The tribunal is not satisfied that the role and functions she performed as manager were not undertaken by another colleague subsequent to her permanent departure from the respondent in December 2012. That in itself renders this purported redundancy unfair as it was neither impersonal nor objective.
The appeal under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the tribunal awards the claimant a gross amount of €43,941.67. Since the claimant cannot succeed with an unfair dismissal claim and also be the recipient of a statutory redundancy payment relating to the same case it follows that her redundancy payment be deducted from that gross amount leaving her with a net award of €33,765.67 as compensation under the above Acts.
Sealed with the Seal of the
Employment Appeals Tribunal