EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Dorota Rzeznik - claimant UD1476/2013
Pewex Limited - 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: Ms. K.T. O'Mahony BL
Members: Ms. M. Sweeney
Mr. D. McEvoy
heard this case in Cork on 24 November 2014 and 9 March 2015
Ms. Sandra Walsh BL instructed by
Ms. Helen Jeffords, Helen M. Jeffords & Co., Solicitors,
Plunkett Chambers Business Centre, 21/23 Oliver Plunkett Street, Cork
Ms. Clodagh Brick BL instructed by
Niall Brosnan & Co, Solicitors,
5 St Anthonys Place,College Street, Killarney, Co. Kerry
The determination of the Tribunal was as follows:-
Summary of Evidence
AZ and her husband GZ are the directors of the respondent company, which has been operating in Ireland since 2006. It has two shops in Killarney, one in Tralee and its largest in Cork, selling polish goods, bread and cosmetics since 2006. It currently has thirty employees. AZ first met the claimant in Tralee where the claimant had worked as a manger for a competitor. She joined the respondent in Tralee in late November 2011, as a manager earning eleven euro an hour for a thirty-nine hour week. She moved to the Cork shop in March 2012. Some months into working there her pay was increased to €13 per hour as a mark of appreciation and to motivate her. On 22 September 2012 she was promoted to the position of general manager in the Cork store, working flexible hours and with responsibility for all the stores, on a salary of €652.00 per week and signed a contract to the effect. There was a dispute as to whether the claimant received her job description in September 2012 or in February 2013. The business was quite successful until early to mid-2013.
The claimant’s duties included administrative work, ordering supplies, doing invoices and vat analysis, dealing with employees’ problems and with the accountant’s office, monitoring the managers in the other shops which involved travelling on a monthly basis to check their progress and do analysis which included checking competitors’ prices.
Around April 2012 the directors went back to Poland for family and health reasons. They returned to Ireland six to seven times a year, spending two to four weeks here each time. It was the claimant’s position that when the respondent directors moved to Poland she was working an extra ten to twelve hours per week. Her week’s work might take thirty-five to forty-five hours. The workload was demanding and she alerted the respondent to this fact. She was concerned that if she did not continue working the additional hours she would be fired. She regularly took telephone and email messages from the respondent director late at night. The constant pressure she felt from the respondent led to difficulties in her family life. From early 2013 her health deteriorated and she collapsed during a visit to the Tralee shop. In February 2013 the claimant informed AZ in a phone call that she had health problems and wanted to resign as general manager. AZ told her she would be in Ireland in April and to leave her know her intentions then. AZ’s position was that the claimant was not expected to work late. AZ did send e-mails late at night rather than in the mornings but they were sent to the work address and the claimant was not obliged to reply by night even if an e-mail was marked urgent. AZ did not know that the claimant had been doing overtime; the claimant was the general manager and she was responsible for the rosters.
The claimant was on certified sick leave from 19 February 2013 to 15 May 2013 initially due to arrhythmia and for the final 10 weeks or so she was suffering from a chest infection. AZ was concerned about the claimant’s health and the respondent’s staff in Ireland. The claimant continued to do duties of an administrative nature while on sick leave and the respondent paid her in full and recouped the weekly Social Welfare payments of €188.00 from the claimant. The respondent did not have a sick pay sick policy. .
AC of the accountancy firm dealing with the respondent’s business, which already had responsibility for the respondent’s payroll and some VAT, took over some of the claimant’s administrative functions, for no extra cost around the time the claimant became ill. AC did not charge for this. It was not a huge extra and the firm was happy to do the work for the annual fee.
When the directors came to Ireland in April 2013, AC advised them that turnover was dropping significantly and that costs should be cut. They also met the claimant, although she was ill at the time. The claimant indicated that she wished to resign from the position of general manager and only do only administrative and paper work for a reduced salary of €435 per week and on a 30 hour week with the title administrative manager. This was essentially an administrative position. While she was due back at work on 15 May the claimant asked for two weeks’ holidays thereby deferring her return to 1 June 2013, when she would begin in the new position. The directors told the claimant that things were not good, they would see how her new position would work out; redundancy was mentioned as things were not good. It was AZ’s position that the claimant was aware that her job was at risk; they had several discussions about it over the phone.
It was the claimant’s position that the situation declined further in July 2013 with AZ accusing her of not leaving clear instruction with staff and shouting at her over the phone. She had problems with VAT analysis. There was a dispute as to whether the respondent had issued instructions to sell out of date produce and there was a further difficulty between them about an employee seeking a letter for social welfare to say her hours were reduced and she had refused the request but later learned that AZ had authorised the letter. The claimant’s case was that there had been a number of issues in that the claimant had worked more hours than in her contract and had not been paid for this. The claimant had worked when ill and had given in sick certificates. She had refused to do duties for which she had not been trained. It was submitted that she had been unfairly selected for redundancy, that she had no exact comparator and that her dismissal had been due to illness rather than redundancy. As regards the claimant’s problem with VAT related work, AZ’s position was that the claimant had spoken of having experience in dealing with VAT but in any event AZ’s position was that she had only asked the claimant to check the work rather than do it.
Accounts produced in evidence showed that turnover in 2013 fell by almost €600,000 from 2012 figures. All costs were looked at because turnover drove everything. Action was required. Costs from Poland were rising. AC wanted to maintain the respondent’s margin. The respondent could not increase prices because there were competitors in the market and it was vital to compete on price. Stock levels were reduced. The directors were not drawing a salary. In the early part of 2012, when business had been good the directors planned to open another shop and had found two possible sites in Ballincollig. They invested €90,000 purchasing equipment in Poland for the new shop but their plans did not materialise. This equipment remains in Poland, as far as AZ is aware. There was a new cost of €65, 038 for warehousing goods in Poland; this had formerly been done by the supplier(s).
In May and June 2013 there was a bigger dip in the business and the claimant was aware of the risk to her job. AC introduced a human resources advisor to the respondent and a yearly contract was signed with her. AZ was trying to save costs as best she could. It was not viable to take employees from the shop-floor where they were needed. The role of administration manager had only been recently created for the claimant at her suggestion. The respondent decided to make the new position redundant. In the letter of dismissal dated 24 July 2013 the respondent informed the claimant that due to the economic situation, her position was being made redundant. The respondent paid one week’s notice although the respondent had previously spoken to the claimant on the phone about redundancy. The claimant denied having gone to the doctor following receipt of the letter of dismissal. Her position was that she was planning to scan and email her medical certificate to the respondent when she received a telephone call from GZ, advising her that they had decided to terminate her employment due to the conflict between her and AZ. The claimant submitted a medical certificate to the respondent certifying her absence from work between 24 July 2013 and 7 August 2013 due to anxiety. The business has stabilised and AZ and GZ are back in Ireland in the business.
The Tribunal is satisfied that the claimant was dismissed by reason of redundancy. In particular, the redundancy comes within the definition set out in s. 7 (2) of the Redundancy Payments Act 1967 as amended by s. 4 of the Redundancy Payments Act 1967, which provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—
(a) the fact that the employer has decided to carry on the business with fewer or no employee whether by requiring the work for which the employee had been (or had been doing before his dismissal) to be done by other employees or otherwise, or …
The Tribunal finds that the selection of the claimant for redundancy was not unfair. She was in a stand-alone position, created specifically for her some three months prior to the redundancy. The uncontested evidence of the respondent was that AZ had intimidated to the claimant at the time the position was created and in their subsequent phone conversations that the position might be at risk and redundancy was a possibility. The claimant did not have the requisite service to entitle her to a redundancy payment.
Accordingly, the Tribunal finds that the dismissal was fair and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Based on her service of less than two years, the claimant is entitled to one week’s notice. As the claimant received notice on 24 July 2013 that her employment was ending on 2 August 2013, she received her due entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. Accordingly, the claim under those Acts is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal