EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Kerry O'Donnell -claimant UD916/2013
Donegal Youth Service Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly BL
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this case in Letterkenny on 10 December 2014 and 18 February 2015
Claimant: Ms Dearbháil Mulhern, Mulhern, Solicitors,
Main Street, Mountcharles, Co Donegal
Respondent: Mr. Terry MacNamara, IBEC,
3rd Floor, Pier 1, Quay Street,
Donegal Town, Co. Donegal
Summary of Evidence
Unfair dismissal and redundancy claims were brought to the Tribunal on behalf of a youth project worker on the grounds that she had been unfairly selected for redundancy and that even the redundancy payment that the respondent had sent to her had not taken account of two years the claimant had spent as a community employment participant for the respondent before becoming a formal employee. A redundancy payment was cashed on grounds that the claimant needed to do so without prejudice to the two years’ service she believed had not been taken into account.
Giving sworn testimony, LT (regional director with the respondent) said that the respondent had been hit by economic downturn such that the claimant’s redundancy became inevitable when the respondent could no longer fund a full-time project worker to work under her project co-ordinator. The claimant’s salary was paid solely from government funding received by the respondent. Detailed evidence on funding was adduced to the Tribunal.
The claimant’s selection for redundancy was solely based on funding constraints and nothing to do with any issues she may have raised during the course of her employment. In April 2012 the claimant made a formal complaint against her line manager. The project was closed for the summer and the claimant’s contract had expired. Her complaint was investigated and upheld.
The Board had to make the decision on how many positions they could fund when the project reopened in September; they decided they could only fund 1.5 positions. They informed the claimant that there was only a part-time position available for her in September, she had previously been informed that this was a possibility; she refused the offer and accepted redundancy instead. The part-time work days were flexible except for Fridays; the claimant had committed to other work on Fridays so refused the position on that basis with the respondent.
The Fás CE scheme supervisor told LT that the claimant’s service as a CE participant was not reckonable service for redundancy purposes; this instruction from Fás was verbal only.
The claimant was aware that her contract was to expire but had the expectation to return to work in September. She was aware that the funding was in difficulty and did not expect to return to a full-time position. The claimant was informed that the Board wanted to deal with her complaint first before making a decision on her future employment. The claimant was offered a part-time role but her line manager, would be the person she had the complaint upheld against. The claimant did not raise this concern or the fact that she felt it was not a genuine offer of employment. The claimant had alternative employment organised for Fridays so it was not an option for her to work with the respondent on a Friday.
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter. The claimant brought a claim under the Unfair Dismissals Acts, 1997 to 2007 and the Redundancy Payments Acts, 1967 to 2007. It is common case that the claimant was made redundant. However, the claimant disputed the length of service cited in the calculation made. The claimant claimed, in the alternative, that she was unfairly selected for redundancy.
Having taken all the issues into consideration the Tribunal finds a redundancy situation did occur but the dates on which the original calculation and payment made were incorrect.
The Tribunal therefore finds the claimant is entitled to a redundancy payment, under the Redundancy Payments Acts, 1967 to 2007, based on the following details:
Date of Commencement: 8 October 2007
Date of Termination: 29 June 2012
Gross Weekly Pay: €634.62
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
N.B. It should be noted the claimant has already received a redundancy payment of €2,388.00 and this amount should be taken into account when completing the final calculation.
The claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal