EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Andrew Kennedy – claimant UD1102/2012
Edmar Golf Limited – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr N. Ormond
Mr S. Mackell
heard this claim at Dublin on 17th October 2013 and 29th April 2014
Claimant(s) : Ms Kiwana Ennis BL, instructed by:
Mr Sean O'Brien
O'Brien Ronayne, Solicitors
5a Main Road, Tallaght, Dublin 24
Respondent(s): Mr Peter McInnes
McDowell Purcell Solicitors
The Capel Building, Mary's Abbey, Dublin 7
The determination of the Tribunal was as follows:-
The dismissal was not in dispute. The claimant contended that he was unfairly selected for redundancy.
Summary of Respondent’s Evidence:
The Commercial Director of the respondent company gave evidence. The company provides management and maintenance services for golf courses. Maintenance represents 50% of the cost of running a golf course. The respondent company reduces this cost through centralised management and procurement.
The claimant was employed at a large golf and sports complex in south county Dublin. It went into receivership in 2010. The respondent took on a caretaking role for three months in 2010. The witness met the claimant, who was the facility manager, once during this three month period. In 2011 the Receiver informed them that they intended to find a tenant for the golf club and shop. The pub, restaurant and tennis courts were leased separately to different companies. The respondent company were aware that the golf course required a large investment and that it was a different business model to what they normally followed, but they decided to seek the tenancy.
In November 2011 they were informed that they were the preferred bidder for the lease of the golf club and shop. The respondent only received scant financial reports and information on staff roles from the Receiver. It was a complicated process as NAMA was also involved and so it was not until 5th April 2012 that the respondent company took on the lease. During the lead up to the transfer he met with the staff involved on a number of occasions. Seven employees were to transfer.
The first meeting was held on 5th March 2012. The witness made a presentation to the staff. The witness explained that the respondent company worked on a centralised model for systems and management. The respondent HQ was a 15 minute drive away. The facilities management role had been identified as at risk for this reason, though had not been expressed at this stage. A further meeting was held on 9th March 2012. Staff costs represented 67% of the golf club’s cost and they informed the staff that voluntary redundancies may be sought. The next meeting was 16th March 2012. He stated that redundancies were likely and hoped that they would be voluntary. He asked the staff to identify possible cost saving measures. Individual meetings were held with staff members who sought one. All employees except the claimant sought a private meeting. The witness sought cost saving feedback at the next meeting on 23rd march 2012, but no ideas were returned.
At the next meeting on 28th March 2012 the witness outlined the sequence of events. P45s were to issue from the previous company along with outstanding holidays and entitlements. They provided statutory redundancy figures to the employees. They clarified that they could not make an offer of redundancy until they had the lease. Two employees expressed an interest in taking the redundancy payment. He sought a meeting with the claimant to get an outline on his role, as they had not been provided with any detail. The claimant supervised the driving range, golf stock, procurement, sales and marketing and rosters. Much of the claimant’s role was covered by their centralised management.
He met the claimant again on 5th April 2012 and transfer letters were signed. There was a general meeting and a private meeting with the claimant. He invited the claimant to a meeting on 10th April 2012 and advised him that he could bring a representative. The claimant brought his father. He asked if the claimant had considered any alternative role, but he did not get any feedback. He advised the claimant that his role would most likely be made redundant. He suggested that he could apply for a golf sales assistant role, which was counter based without any management function with a salary of €25k. The claimant was on a salary of circa 65k p.a. The claimant was unhappy with that suggestion. The claimant was invited to a further meeting on 13th April 2012. He was advised at that meeting that his role was being made redundant. He offered pay in lieu of notice which he accepted and finished working that day. His date of termination was 7th June 2012. He met the claimant on 11th June 2012 to complete the RP 50 form and give the redundancy payment. The claimant was not replaced.
The witness was cross-examined. He could not say on what date he decided to make the claimant’s role redundant. Through the process he identified that the claimant’s role did not fit their operating model. He consulted with the other directors in the respondent company but the ultimate decision was his. The decision evolved between 10th and 13th April 2012. No cost analysis was carried out to determine the cost of retaining the role versus losing it. No matrix was created. There were no alternative roles in the company or within the controlling company. Absorbing the claimant’s role into the central office did not create more work or longer time for duties to be performed.
There was no specific warning given to the claimant that he was attending an ‘at risk’ meeting on 28th March 2012. The witness agreed that there was quite a discrepancy between his notes of the meeting and the claimant’s notes. The witness produced brief notes produced on his Ipad which were undated. Three sets of notes were produced at the hearing; BC’s notes, the witness’s notes and the claimant’s notes. This meeting was the only occasion on which the claimant was asked about his role.
It was disputed who called the meeting on the 5th April 2012 with either side contending that the other called it. Again there was a discrepancy between the claimant’s notes and the notes produced by BC and the witness’s ipad notes. A wage decrease or an increase in hours was not discussed; only the other role that the claimant could apply for. He did not recall the claimant asking for the job description for this role. The claimant was not required to work his notice, but he could have had he wanted to. After the claimant left two part-time employees were made fulltime golf sales assistants.
BC gave evidence. Her company provided an independent human resources service to the respondent company. All staff members were offered voluntary redundancy and two accepted. The respondent company initially wished to gather information on roles and practices within the golf club. She attended staff meetings and individual meetings with the Commercial Director. The claimant was always courteous and helpful and there were no reason other than financial for not wanting him to continue in his role. She was not part of the decision to dismiss. Her role was to identify a fair process and lead to a reduction in the cost base required.
The meeting of 28th March 2012 was the first one to one with the claimant. BC typed her notes within 24-48 hours after the meetings. She believed her notes accurately reflected the meetings. She disputed the claimant’s version of events that she opened the meeting of 5th April 2012 by informing him that his role was being made redundant. She led the meeting of 13th April 2012 as the company had made the decision to dismiss by that date. She believed that the claimant was consulted and that the redundancy was not a foregone conclusion.
The witness was cross-examined. She contended that the claimant ran the meeting of 5th April 2012 as he had requested it. She disputed his notes of the meeting. She agreed that the claimant mentioned constructive dismissal, as noted on the Commercial Director’s Ipad notes but not on hers. She did not note this as the claimant said this in the context of asking if the meeting was an interview for his job which she denied. She believed it had been addressed.
The claimant was first advised that he could bring someone with him to the meeting of 10th April 2012. BC believed that the terms and conditions of the new role were read out at the meeting. The claimant dismissed this role immediately and did not request the role profile in writing. The claimant was not requested to work his notice as the company were sensitive that the business had been a family business for a long time.
Summary of Claimant’s Evidence:
The claimant commenced his employment at the golf club in 1996 in the role of general manager of the sports and leisure complex. It was originally a family business. The business got into difficulty in 2010 due to a deal with a developer who went bankrupt. The company went into receivership in June 2010. While in receivership the claimant’s role was greatly restricted. All purchasing and marketing had to go through the Receiver. No money was spent on developing the business.
He attended all of the group meetings with the respondent company bar one due to annual leave. The Commercial Director explained the company’s centralised model several times. Cost savings were mentioned, but it was difficult for the claimant to make suggestions as the accounts had been out of his hands for so long.
On 28th March 2012 BC requested that he attend a one to one meeting as he was the only employee who had not attended one. They discussed his role, wages and what other employees did. The atmosphere was very casual. The Commercial Director went through his company model and vision for the business. He was not asked about cost cutting. He was asked about the employees who had sought redundancy. His role was not discussed in a redundancy context. He was not asked how to avoid his role being made redundant. He believed that the meeting was purely about finding out about his role.
He began taking notes after the meeting of 5th April 2012. He contended that he had been requested to attend this meeting. There were documents to be signed concerning the transfer. Following that the Commercial Director told him his role was being made redundant as they could not afford him. He was told there was a desk job at a lower salary. He was shocked and immediately thought of constructive dismissal. He felt that the last meeting had been a job interview. Later that day BC told him to come to a meeting the following Tuesday and to bring someone with him.
He started to take notes after that and wrote them up at the end of each day a meeting was held. He agreed that his notes of 5th April 2012 had an annoyed tone. He had put in a lot of extra effort and hours coming up to the transfer. He knew redundancy was a possibility but he believed that was an outside chance and rather he expected to be asked to do longer hours and to work harder.
He brought his father to the next meeting. BC explained that his role was redundant and that he could apply for a desk job. He asked for the terms and conditions, he disputed that they were read out. He did not apply for the role. He accepted not to work his notice. He believed he was selected because of who he was. He would have discussed working for a slightly lower rate of pay. He gave evidence of his loss. He did not seek alternative employment but rather focussed on establishing his own business which he has accomplished.
The claimant was cross-examined. There was no discussion of business ideas at the meeting on 28th March 2012, only cost savings were discussed. He contended that his notes of the meetings were correct. He did not apply for the alternative role as it was for a third of his wages and he was insulted that they requested a CV.
The respondent did not discharge the onus to show that the decision was impersonal based on objective criteria entirely divorced from the individual employee. Further they failed to show that they explored alternatives fully short of redundancy either within the site or within the wider group. It was unfortunate that there was no clarity as to the decision making process and the basis of the decision provided by the respondent.
The Tribunal is not satisfied that the claimant made anything approaching a full attempt to mitigate his loss. He gave evidence of not applying for any jobs. It is accepted that he made significant attempts to set up his own business and has now succeeded.
In all the circumstances the Tribunal awards the claimant €10,000 (ten thousand euro) under the Unfair Dismissals Acts, 1997 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal