EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Allen Clarke UD454/2013
against the recommendation of the Rights Commissioner in the case of:
International Airport Hotel Limited T/A Clarion
Airport Hotel -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr. D. Peakin
Ms N. Greene
heard this appeal at Dublin on 24th April 2014 and 31st July 2014
Appellant: Mr. Paul Henry SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr. Michael McGrath IBEC, Confederation House
84/86 Lower Baggot Street, Dublin 2
Mr. Kieran Wallace, Kpmg Restructuring, 1 Stokes Place, St.
Stephen's Green, Dublin 2 - Did not attend
Mr Niall Macklin, Kpmg, 1 Harbourmaster Place,
International Financial Centre, Dublin 1 - Did not attend
This case is before the Tribunal by way of an employee appealing a recommendation of a Rights Commissioner, ref:r-127034-ud-12/RG. The respondent is a hotel based near Dublin airport. The appellant worked in a senior management position from 1972 until 18th May 2012. The respondent contends that the appellant was dismissed by reason of redundancy. The appellant contends that he was unfairly selected for redundancy. The respondent is currently in Receivership. The Receiver did not attend the hearing however Mr. McGrath from IBEC represented the respondent with the Receivers permission/knowledge.
The representative for the respondent explained that in 2009 the respondent had to implement a survival plan and redundancies were effected. No one from the restaurant was made redundant at the time because pay cuts were agreed and implemented. In 2011 the permanent duty manager role was made redundant. The respondent will say that all senior managers then became duty mangers when on duty and were rostered as such. The claimant was offered alternative role/s however the meetings between the witness and the appellant on this issue were informal and minutes were not taken.
The representative for the appellant opened that they believed the redundancy was personal to the appellant. The appellant was moved out of his position as restaurant manager to a position of duty manager. He did ask if he could be moved (moved back) to position as restaurant manager but was told that he could not because he would displace two managers (supervisors) who were running the restaurant, so he was therefore not a restaurant manager. In previous situations a last-in-first-out criteria was used but not this time.
The representative also contends that there was no matrix used in the selection process. There were no meetings regarding the redundancies and stated that it was for the respondent to offer alternatives according to the Act and not for the appellant to proffer alternatives. No offer of suitable alternative employment was offered to the appellant. The letter of redundancy did not contain information or allow for an appeal of the decision.
The Tribunal heard evidence from LC who said that she was the general manager of the hotel as it is now named and was the manager of the respondent. At the time of the redundancy the then respondent was in receivership. In 2009 there were 130 employees and it was scaled down over time to 110 employees. The hotel revenue steadily decreased from 9 million to 6 million in 2009. The witness explained steps that were taken because of this decline. They consulted SIPTU, meetings were held and from that, devised a survival plan. They looked at the sick pay scheme. They looked at the loyalty payments. They implemented pay cuts of 7% across the board. The workers in the restaurant agreed to reduced working hours.
An organisation chart of the restaurant was opened to the Tribunal which showed the management structure, it consisted of one front of house manager, one restaurant manager, one assistant restaurant manager, four restaurant supervisors and two bar supervisors.
The witness explained that the Duty manager position was a permanent role up to 2009. After 2009 this role no longer existed. The witness later explained that the various managers of departments, when they were rostered, were not referred to as their department manager they were identified as the duty manager of the day. By 2012 restaurant business was very low and a review took place. SIPTU were consulted and advised that the restaurant was overstaffed and the structure top-heavy. Voluntary redundancies were sought and because only one person requested redundancy the union were informed that a layer of management would need to be removed and the number of supervisors in the restaurant reduced. The respondent advised the union that it would listen to any proposed alternatives. The union met with staff on 1st March 2012.
LC spoke with the claimant on 12th March regarding the proposed redundancy. She asked him for any suggestions or alternatives he might have. On 13th March at a meeting with SIPTU she enquired if any alternatives were being proposed for the claimant. The position of front-of-house manager was discussed and also a demotion to a supervisor role if deemed suitable. It was agreed that the claimant would be advised of these considerations on 15th March. LC provided SIPTU with a letter regarding the redundancy and alternatives on 14th March.
LC said that on 15th March she met with restaurant staff who were being affected by the redundancy situation. She spoke separately with the claimant and asked if he had considered any alternative. He said that he didn’t have any suggestions and while he didn’t want to leave he would do so with an adequate payment. LC advised him that the respondent company was in receivership and any payments would be statutory amounts.
On 16th March the respondent again met with SIPTU, they advised that the claimant ruled out the alternatives and LC told them that the receiver would by present on 22nd March to process the voluntary redundancies. She advised SIPTU that the claimant could than speak directly to the receivers. She again met the claimant on 20th March and at this time he told her that he was the duty manger and that the duty managers role was not redundant. She explained that the full time duty manger role was made redundant in 2009 and that all mangers/supervisors carried out the role on the day they were rostered. She prepared his letter of notice and RP50 on 23rd March.
MM the trade union official told the Tribunal that he did receive the job description for font- of- house manager from LC. He didn’t pass it on to the appellant and considered it the responsibility of the respondent to do so. The appellant showed him the duty manager’s rosters and considered himself as duty manger.
The appellant gave evidence of being the restaurant/banqueting manger up to 2009. The then duty manger took redundancy and he became listed on the monthly duty mangers roster. He only became aware of the ongoing financial situation at the first union meeting on 26th January, the day before he had forty years of service. He was told there would be redundancies and that his name would be included. Nothing was ever discussed directly with him.
He told the Tribunal that being selected for redundancy was a major shock. After forty years of service he considered two year’s salary to be appropriate. He conceded that he e-mailed AON Group Operations Manager on 31st March looking for to appeal the decision or receive additional payment. The meeting took place with no satisfactory outcome.
Having carefully considered the evidence adduced by both parties, the Tribunal is of the opinion that the respondent afforded the appellant every opportunity to consider alternatives and taking all relevant factors into consideration the Tribunal finds that the selection was not unfair and that a genuine redundancy situation existed.
The Tribunal therefore upholds the decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (reference: r-127034-ud-12/RG).
Sealed with the Seal of the
Employment Appeals Tribunal