EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Matthew Farrell UD323/2013
P. Boland Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr. L. Tobin
Mr C. Ryan
heard this claim at Dublin on 27th February 2014
and 10th July 2014
Claimant: Mr. Conor Bowman B.L. instructed by,
McGarry & Company, Solicitors, 33 Main Street, Bray, Co Wicklow
Respondent: Mr. David Farrell, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Summary of Evidence
The Managing Director (DF) gave evidence. The respondent is a large hardware shop which includes a garden centre and builders provider/trade centre. Due to the significant downturn in business the respondent revenue drastically deceased from 2007, by June 2008 revenue had decreased by 33%. In early 2009 a voluntary redundancy scheme was implemented resulting in 3 redundancies. The Directors and senior management took a 20% pay cut and short-time was also introduced. The situation had further deteriorated in 2010 with losses in revenue of 40%. The respondent attempted to refocus the business but with little success leading them to re-asses the situation at the end of 2010.
In 2011 the store manager was made redundant and the coffee shop was closed totalling 4 redundancies. At the end of 2011 the hire centre was closed.
Throughout the cost cutting process ongoing meetings had been held with the staff to keep them apprised of the situation. (Details of the meetings were supplied to the Tribunal.)
In 2012 further meetings were held with the staff and specifically on the 24th of August 2012 where the respondent stated that,
‘As I told you at every meeting, If after all our efforts sales figures fell further restructure would have to take place to keep the business viable…This restructure will involve up to 6 redundancies & a reduction of pay across the board.’
The respondent primarily looked at the builder providers during the restructuring planning process as that business was practically gone. It was decided that pay-cuts were preferable to short-time due to recent changes governing Social Welfare entitlements.
A liaison committee made up of staff and management was established for the redundancy process. On the 29th of August 2012 it was outlined that at first instance the redundancies would be sought on a voluntary basis but it was made clear that, ‘Should the (voluntary redundancy) plan be undersubscribed, the company reserves the right to implement compulsory redundancies based on last in first out within departments and experience.’
The respondent received and acceded to two voluntary redundancy applications. The remaining redundancies consisted of 1 supervisor from the hire/trade area (claimant), 1 supervisor from the shop floor/garden centre and 1 supervisor from the shop floor/baby nursery area. The compulsory redundancies were identified by cost and level of experience required in the area. The claimant was the highest cost in the yard and the business ‘could go on without him.’ The remaining staff could cover the claimant’s role. The respondent removed the position of ‘supervisor’ and one of the Directors (JF) took over running the builders yard, (the hire centre had been closed previously.)
The respondent met the claimant on the 14th of September 2012 and informed him he had been selected for redundancy. The decision to select the claimant for redundancy had been made after the management meeting held on the 1st of August 2012 but before the staff meeting on the 24th of August 2012. No alternatives were explored or discussed with the claimant. The claimant was selected based on cost; the respondent is not aware if he would have been selected based on a last in first out basis. There were 2 other staff in the area, both part-time with less service than the claimant; it is possible that one of the part-time staff was made full time after the claimant’s departure. The respondent in in agreement that the first time the claimant was made aware of his selection for redundancy was at the meeting of the 14th of September 2012.
The Managing Director is aware of the difficulties the claimant had in the work environment and the disciplinary issues that arose. He was not aware of specific issues relating to customers that were dealt with directly by JF. DF disputes telling the claimant, “if you don’t like it, there’s the gate” when he queried the Saturday working hours.
The claimant commenced employment in July 2009 managing the builder’s yard, the stock and the yard staff. He reported to JF and DF. A number of difficulties arose during the course of the claimant’s employment revolving around the claimant’s concern that there was a lot of theft from the yard. The claimant gave detailed evidence of specific incidents and the respondent’s response to same. When the claimant complained about having to work a 7-day week he was told, “there’s the gate.” By letter of the 18th of July 2012 the claimant’s solicitor wrote to the respondent seeking a resolution to the claimant’s grievances. The respondent replied to the claimant at a meeting saying, ‘you’re causing agro to the co-workers.’
The claimant was aware that there were ongoing financial difficulties within the respondent. At 4.45pm on the 14th of September 2012 the claimant was called to a meeting; he presumed it was to inform him that he was getting a pay cut. He was informed that he had been selected for redundancy and that he could leave the premises immediately as he was not required to work his notice. He was given a cheque and the RP50 form.
Other than the general staff meetings the claimant had not been consulted regarding redundancy. No alternatives were discussed. There were part-time staff with lesser service in the builders yard; the claimant would have accepted a part-time position.
The claimant gave evidence of his Loss and attempts to mitigate his loss.
Although the Tribunal is satisfied that a genuine redundancy situation existed within the respondent, the procedures used in effecting the redundancy were defective in that there was no consideration of alternative roles; there does not appear to have been any real form of selection; and that, notwithstanding it having been indicated that compulsory redundancies would be selected on the basis of last-in-first-out principles, the claimant was dismissed even though more recent employees were retained. The Tribunal, therefore, finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal awards €8,000.00 in compensation as being just and equitable in all the circumstances. This award is made in addition to the redundancy sum already received.
Sealed with the Seal of the
Employment Appeals Tribunal