EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
John Keenan – claimant UD838/2013
Yellow Pearl Limited T/A Shop Bodyshop Direct – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr E. Handley
Mr N. Dowling
heard this claim at Trim on 5th June 2014
Claimant(s) : Mr Paul MacCormack, Coyle Kennesdy & MacCormack Solicitors, Thomas Street, Castleblayney,
Respondent(s): Mr Paul Brady, Paul Brady & Co, Solicitors, 3 Railway Street, Navan, Co Meath
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
The Managing Director (MD) of the respondent company gave evidence. The company operates a motor parts business which sells directly to the end user. The company was established in 2002 and had 16 employees at its height in 2006-2007. The claimant was employed on 10th October 2010 as the Cavan/Monahan and Northern Ireland sales representative. The country was split into five areas. The claimant’s contract of employment identified his salary as €12k plus commission of 8% of cash collected. However, the company chose to pay the claimant €2k per month for the first three months to help him get started and in fact this situation remained for the entirety of his employment. He was supplied with a van and a mobile phone. A fax machine and broadband internet were installed in his house.
There was a schedule of existing customers but the claimant was also expected to bring in new customers. He was required to complete his cash and trade accounts monthly. The company had 12 employees when the claimant joined. The company was loss making between 2010 and 2012. The claimant’s figures were not great and the MD believed he was aware of this. They had a good relationship. The company paid the claimant for bereavement leave on two occasions during his employment. The claimant’s region did not perform as expected and the claimant continued to be paid a monthly salary as his sales’ commission was not sufficient to support him and his family. There were quarterly appraisals at which they discussed targets and rolled the existing contract over.
The claimant’s region was the poorest performing at 50% less sales than other regions. The MD said that it was not the claimant’s fault that the region was not performing but that the company had to make a decision; which was to divide the claimant’s region and assign it to the North East and North West regions. The representatives from these regions lived in Balbriggan and Sligo. The claimant lived in Castleblayney, Co. Monaghan. The MD was aware that the sales representative from Balbriggan had less service than the claimant when the claimant was selected for redundancy. If he let that representative go instead the claimant would have to cover down as far as Wicklow. He did not believe the claimant could logistically cover that area. The Balbriggan representative now covers Cavan, Monaghan, Newry, Armagh and the North West representative covers the rest of Northern Ireland.
The MD and General Manager met with the claimant on 16th August 2012 to inform him of the redundancy. They had agreed in advance how it was to be done and they had the Balbriggan based representative at the office at the same time. He offered the claimant one month’s notice and requested that he bring the NE representative with him to visit customers in his region so he could introduce the new representative and explain that his departure was for purely financial grounds. The claimant also had leave booked for that month and so it was intended that stocktaking and handover would occur after his return. The claimant was disappointed but ‘took it like a man’.
The claimant did as requested the week after and visited his region with the NE representative. However, the following week he refused to go with the other representative and said that he was not bothered to show up to work. He was due on leave at the end of that week. The claimant cut the notice period short and effectively finished then. The relationship soured after that. The MD’s brother and the NE representative went to his house to collect the van. Stock and accounts had to be cleared. The cash account had €2-3k outstanding. The claimant said he would visit a customer, M.E., who was responsible for a larger amount of cash. The claimant phoned the MD and said that M.E. had informed him that someone had already collected the money but he did not know who and there was no receipt. The MD considered this extraordinary. The claimant’s partner then came on the phone and demanded that the claimant was paid before they went on holidays. He was entitled to his pay that week as they paid a week in arrears, but the MD still wanted to close the cash account. The claimant told him to keep the salary in lieu of the payment for the cash account. He accepted the claimant’s salary in lieu even though it did not cover the full amount.
The claimant rang at a later date and said that he had received the outstanding cash from M.E. and that he would keep it. He indicated that he did not intend to work on his last week of notice. The MD tried to meet him again but the claimant refused to go to the office. He had offered the claimant the option of taking over the region on a self-employed basis but he declined.
The witness was cross-examined. He did not tell the claimant that his probation was being extended when he continued his employment on the initial contract. Every three months he told him that he was extending his contract. However, the claimant’s file went missing from the office after the dismissal he could not produce any of the documents.
It was not the claimant but rather the region which was selected for redundancy and he was the only one in that region. He did not consider the option of the claimant moving closer to Dublin to cover the North East region in place of the Balbriggan representative with less service.
The General Manager gave evidence. The claimant was brought in for appraisal every three months and his contract was rolled over. Documents were signed but he could not recall exactly what was in them. He discovered that the file was lost when the claimant sought a copy having lost his. He was present at the dismissal meeting. Four weeks’ notice was given to the claimant. He considered the claimant taking on the North East region but believed that diesel and hotel costs would be too high.
In cross-examination he stated that at the appraisal meetings the claimant was told that his contract was being extended. He could not recall if the word probation was used. He did not carry out a cost analysis of the claimant taking on the North East region.
Summary of Claimant’s Case:
The claimant was employed by the respondent company from 10th October 2010 until the end of August 2012. He was given notice of dismissal by reason of redundancy on 16th August 2012.
He denied having received any contracts after the first one. He did not refuse to sign any documents. The appraisal meetings covered customers, trade and general business; contracts were not referred to. He was told that the regions were being consolidated and that they had to let him go. He was offered a franchise but decided it was no feasible and so declined. No alternative employment was offered.
The claimant was cross-examined. At appraisals the MD requested him to increase sales by 10% month on month from December 2011 into 2012. He was exceeded this and was congratulated by the MD and in April 2012 received a wage increase of €200 per month.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, was withdrawn during the hearing.
Having heard all the evidence the Tribunal finds that the claimant was unfairly selected for redundancy. There is no dispute that a redundancy situation occurred, but no alternative employment was considered and the claimant was not engaged with on any substantial level as to his possible future with his employer. Accordingly the Tribunal awards him €15,400 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal