EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Pat Cranitch -claimant UD1368/2013
Matflo Engineering Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Ms S. Kelly
heard this claim at Cork on 4 November 2014
Claimant: Mr. Barry Murphy, Eugene Carey & Co, Solicitors, Courthouse Chambers, Mallow, Co Cork
Respondent: Mr. Philip Comyn, O'Connor, Dudley & Comyn, Solicitors,
Westend, Mallow, Co Cork
The respondent has an engineering and fabrication business. It had a core staff of ten employees working in the workshop as well as two directors who also work in the business. The claimant was employed in the business from its commencement in 1989 and was a valued employee who made a significant contribution to the success of the business. He was originally employed as a steel fabricator and was later promoted to the position of foreman of the workshop. Business began to decline in 2009. In 2010 workers were put on a three-day week for 13 weeks but the business continued to operate on a five day-week basis. Things got worse in 2011 and three-day weeks were introduced on two occasions. In 2012 the business was barely surviving and employees were again put on short-time. The business was in survival mode and accumulating debts. When voluntary redundancy was offered in October 2012 the claimant enquired about it but lost interest because it was only on a statutory basis. Because no one availed of the offer the only option open to the respondent was to make six of the ten workshop workforce redundant. The redundancy selection was based on the needs of the business going forward and the four best workers with essential skills to meet orders were retained. LIFO was not applied.
The four employees who were retained had skills the respondent required to keep the business viable:
one owns a computerised plasma cutting machine, which the respondent purchased from him, and it was essential to retain him as he was the only employee who could operate the machine,
another is the only spray painter in the employment,
the third employee is a steel fabricator who does all the work for one of the respondent’s major customers and is by far the best steel fabricator in the company, and
the fourth employee is also a senior steel fabricator and like the claimant was with the company from its commencement but he was not a foreman.
The claimant was the workshop foreman. Due to the reduction in the number of employees in the workshop a foreman was no longer required and his position was therefore selected for redundancy. The claimant was a valued employee with long service and the respondent considered retraining him but the respondent’s regular customers provided no lead time in production and due to the precarious financial situation of the company there was no time to retrain the claimant and risk losing the remaining customers. The claimant had been out on sick leave for sometime in 2012 and on his return in October 2012, at his request, he was put on a three-day week.
On 1 November 2012, the respondent’s managing director (MD), met with those being made redundant to inform them who was being retained in the employment and why. MD had met with the claimant in his office for this purpose. A letter of even date to the claimant outlined that his redundancy would be effective from 31 December 2012 and the amount of his redundancy payment (€29,400.00). On 6 November the claimant approached MD in an aggressive manner about his redundancy and an altercation ensued between them. The following day MD told the claimant that he was not required to work his notice and handed him a letter to this effect enclosing inter alia a cheque in an amount equivalent to eight weeks’ wages.In March 2013 and June 2013 two of the six employees who had been made redundant were re-employed by the respondent.
The claimant had worked for the respondent from January 1989. Following a period of 20 weeks’ sick leave he returned to work in October 2012 and sought a three-day week. A few weeks later employees were put on a three-day week.There was a mention of voluntary redundancy. The employees were informed that business was quiet and that they were being made redundant but MD came to him in his office/workshop to inform him about his redundancy and gave him the abovementioned letter to this effect. The claimant asked why he had been selected as he had trained one of the employees that was being retained. He did not receive a satisfactory response; he was never told why he had been selected for redundancy. After taking legal advice the claimant again asked the respondent why he had been selected for redundancy. The conversation was heated and he left the premises. The following day the claimant was called to a meeting, where he was given his minimum notice pay and asked to leave the premises.
The claimant accepted that the business could operate without a foreman and that the position was genuinely made redundant but there had been no prior consultation or prior notice of his redundancy and he was not told what criteria had been used to select him for redundancy. The claimant maintained that he was capable of taking up all of the remaining positions except the operation of the plasma machine.
A genuine redundancy situation existed and the claimant’s position of foreman, which was a unique position in the company, was made redundant.
More than 50% of the employees were made redundant. Those best suited to business requirements were retained in the employment and the reasons for their retention in employment was explained to the claimant and other employees who were made redundant. Thus, conversely the claimant was made aware why he was selected for redundancy.
The claimant’s dismissal does not come within the circumstances set out in section 6 (3) of the Unfair Dismissals Acts 1977 to 2007 which would render the dismissal for redundancy unfair. While under section 6(4)(c) redundancy is a fair reason for dismissal, subsection (7) provides that in determining whether a dismissal is unfair the Tribunal may have regard where it considers it appropriate “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation of the dismissal”. The Tribunal, in exercising the discretion conferred on it by this subsection, does not find that the respondent acted unreasonably in failing to engage in a consultation process in circumstances where the business was in serious decline, short time was yet again implemented, voluntary redundancies were sought and more than half the workforce was made redundant.
For these reasons the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal