EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kay Healy - claimant UD1539/12
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr. T.L. Gill
Mr. J. Flavin
heard this claim in Limerick on 9 July 2014 and 11 February 2015.
Claimant: Mr. Derek Sheahan BL instructed by Ms Lillian O'Sullivan, Lillian O'Sullivan & Co, Solicitors, 48 Maylor Street, Cork
Respondent: Ms. Sinéad Mullins, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
On 9th July 2014
Ms Mairead Crosby, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
On 11th February 2015.
The determination of the Tribunal was as follows:-
The respondent operates two pharmacies located in the south of the country. PD, owns both of these pharmacies. He is managing director and a qualified pharmacist. He opened his first Pharmacy (N) in town NW in 1991. There the business had two pharmacists, a college person and two girls on cosmetics. The town has some seven thousand people. He subsequently opened his second pharmacy (D) in D.
The claimant worked in pharmacy D and was a qualified pharmaceutical assistant who dealt with over the counter medicines. All pharmacies had to have a supervisory pharmacist. The claimant could dispense prescriptions when there was a pharmacist present supervising her. Supervising pharmacists had to have three years post-qualification experience but could float between pharmacies. The claimant had been on an annual salary of over €70,000.00. PD’s wife also worked in the business.
Also, GW (an employee of the respondent) decided to open a pharmacy in village D and his employment with the respondent promptly ceased after PD asked him to leave. GW moved to about fifty yards away from the respondent’s pharmacy and opened at the end of May 2011. He knew all the respondent’s customers and prices.
The respondent looked after a dispensing doctor who would dispense antibiotics and the top fifty products lines to patients. The respondent dispensed stock to her at the request of HSE. That was worth €275,000 to the respondent in 2010 but in 2012 it was worth €45,000. She was then getting supplies from GW. The respondent was losing a lot of business very quickly.
In 2010 the respondent had decided to upgrade pharmacy D. It built around the back and moved in 2011/2012. Having started the move before the new pharmacy opened, the respondent carried on. It tried to compete with GW but GW was charging less than the respondent. The respondent negotiated better conditions with suppliers. Saturday work went to every second week. An employee (ML) was not replaced. The respondent got a slight rent reduction in Pharmacy N. The respondent owned pharmacy’s D premises. PD cancelled the pension for himself and his wife.
The respondent looked at reducing opening hours but had to increase them for competitive purposes. Turnover fell by twenty per cent. Accounts were prepared by a second cousin of PD. PD knew that pharmacy N was not being hit to the same degree. It was outperforming pharmacy D. The respondent started looking at its profit and loss account.
The supervising pharmacist at all times retains full responsibility for the supervision and management of the pharmacy.
On 23rd June 2009 the Minister for Health and Children announced major cuts in payments to pharmacy contractors effective from 1stJuly 2009. The cuts would amount to a 36% decrease in the respondent’s profits from dispensing to HSE schemes. This was the start of the downturn in the business. PD circulated a Memo to all staff in relation to these cuts. No decision was taken at this time. He requested a copy of the company’s accounts for pharmacy D. Profits were down. Drastic savings had to be made. He looked at both pharmacies and pharmacy D was the worst hit. MF resigned in July 2011 and was not replaced. PD reduced the reliance on locums.
When PD met the claimant on 23 March 2012 he explained the situation and the factors affecting the business and the possibility of her role being made redundant. Pharmacy D was suffering losses because of the second pharmacy owned by GW in village D. The prescription/dispensary income and profit had decreased dramatically at pharmacy D as a result of the opening of the new pharmacy by GW.
The claimant telephoned him the next day and enquired if there were issues with her work but PD assured her that there were not.
On 13th April 2012 PD spoke to the claimant and informed her that her role was being made redundant. It was the hardest thing he had to do. He considered everything. All roles in the two pharmacies were examined. Two pharmacists worked in both pharmacies. He considered moving the claimant to pharmacy N but that was not feasible. The hit was in the dispensary and it was losing money and naturally PD felt the logical person to let go was the claimant. The claimant working part time hours was not suitable. It made more sense to keep a fully qualified pharmacist in the pharmacy.
On 17th April 2012 the claimant handed PD a letter and he arranged to meet her on 20th April 2012 to discuss the contents of her letter. The claimant was willing to reduce her hours. The Code of Practice set down for a pharmaceutical assistant who performs the professional duties of a pharmacist in his/her temporary absence requires that he/she be permanently employed in that pharmacy for at least 15 hours per week under the supervision of a qualified pharmacist. A pharmaceutical assistant can cover short absences such as lunch hours, one day (or two half days) off per week and unscheduled short absences. In the event of the absence caused by the pharmacist’s holiday entitlements, the maximum number of days that the pharmaceutical assistant can cover shall not exceed 14 days in any one absence.
On 27th April 2012 PD presented the claimant with two cheques and asked her to sign a receipt for same. One cheque included the claimant’s statutory redundancy entitlement and the other cheque was in respect of an ex gratia payment. The claimant refused to sign any documentation or accept either cheque. The ex gratia payment cheque was for €10,000.00.
In September 2012 the claimant’s solicitor informed the respondent that the claimant would not be accepting either her redundancy cheque or the cheque in respect of an ex gratia payment.
The claimant qualified as a Qualified Pharmaceutical Assistant in 1982. Entry to the Qualified Pharmaceutical Assistants course ceased in 1983 with the final examination in 1985. She worked in several pharmacies in the country post her qualification and she commenced employment with the respondent in June 2000 in pharmacy N located in NW. She was not furnished with a contract of employment. She worked between the two pharmacies and sometimes she worked Saturdays. Regularly she worked two days in one pharmacy and three days in the other pharmacy. Most of her time was spent on dispensing prescriptions. Her role also entailed looking after returns. Often she had been left to work on her own without a Pharmacist present. Five pharmacists covered both pharmacies.
In 2008 she began working exclusively in pharmacy D, with full time hours Monday to Friday. She checked her own prescriptions. She had no problems at work and had gained general satisfaction with her work and received a bonus at Christmas time. Pay rises were hard fought. The last pay rise she received was in 2006/2007. In one year she received a €15,000.00 pay rise. Her final annual salary was over €72,000.00. Both PD and his wife called to the pharmacy each morning and evening.
In 2009 PD circulated a Memo to all staff. PD called three pharmacists together with the claimant into his office. The following were being considered: reducing pay, reducing the number of staff, reducing opening hours and reducing staff hours. No decision was taken after this meeting.
In 2011 a technician in pharmacy D resigned her position and in November 2011 a supervisory pharmacist was recruited to this pharmacy.
In 2012 pharmacy N’s staff were two pharmacists, PD, a Technician, beauticians and two other employees. In pharmacy D, the claimant worked alongside a supervisory pharmacist, P who carried out dispensary work and had all her prescriptions checked and two others. P had a year’s longer service than the claimant.
In around March 2012 the claimant noticed that Pharmacy D was losing customers. Around 6 pm on 23 March 2012 the claimant met PD. PD spoke about the need for cuts to be made in the pharmacy and was considering making her redundant but not for a month or two. The meeting lasted five to ten minutes. The claimant could not believe it. She cried. PD told her she could go home. She stayed on till 6.30 pm. If she had advance warning of this redundancy she would have sought advice from her representative body, the PAA.
The next day the claimant telephoned PD. She enquired if there was any issue with her work. There was not. Nothing further was said until 13th April 2012 when she was called in to the kitchen in pharmacy D when PD told her that a decision had been made to make her redundant in two weeks time. He had some paperwork and wished to discuss the contents with the claimant.
The paperwork included the terms of her redundancy package. A letter dated 13th April 2012 informed the claimant that her role had become redundant to take effect from 30th April. She was not required to work out her notice period of six weeks. The claimant subsequently telephoned her solicitor and sought advice. She wrote to the respondent on 17th April 2012 and asked PD if he could consider any alternative proposals that she had. She enquired if her position was the only one that was being made redundant.
PD agreed to meet her on 20th April 2012. He did not have any alternative proposals. The claimant suggested working a shorter week as she thought this might help. This was not feasible as there were five pharmacists who covered the two pharmacies. She would have considered a significant pay cut. She wanted to hold on to her job. She had a mortgage to pay. PD said he would speak to his Accountants.
Around 4 pm on the following Tuesday 24th April 2012 the claimant spoke with PD and he told her that her proposals were not feasible.
The claimant’s last day of work was 27th April 2012. Other staff were aware she was being made redundant. She was given two cheques and asked to sign a receipt for them. One cheque was for her statutory redundancy entitlement and the other for an ex gratia payment. The claimant refused to sign any documentation or to accept either cheque. She told PD to address matters to her solicitor. PD wished her luck for the future.
The claimant did not think she had been treated fairly. Since the termination of her employment she has applied for full time positions but to no avail. She has secured sporadic part time work in pharmacies. Regularly she has worked on her own in these pharmacies.
Having carefully considered the evidence adduced at the hearing the Tribunal is unanimously of the view that a genuine redundancy existed.
The Tribunal is also of the view that the evidence did not disclose that the claimant being selected for redundancy was unfair.
The redundancy occurred against the background of reduced economic activity and legislative and economic regulation introduced by Financial Emergency Measures in the Public Interest (F.E.M.P.I.) together with increased competition.
The Tribunal cannot find that the selection of the claimant for redundancy was unfair and her claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal