EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD7/2013
MN3/2013
CLAIM OF:
John Harrington – claimant
against
ISS Ireland Limited - respondent
Under
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 B.L.
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 2nd October 2014 and 26th January 2015
Representation:
Claimant : Mr Cian Cotter BL instructed by McNulty Boylan & Partners, Solicitors, Clarkes Bridge House, Hanover Street, Cork
Respondent : Mr Damien Cahill, IBEC, Knockrea House, Douglas Road, Cork
The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn at the outset of this hearing.
The determination of the Tribunal was as follows:
Summary of Evidence
The respondent is a medium sized entity providing management services in catering, cleaning, pest control and security. It has up to six regional offices throughout the country and employed the claimant in Cork.
The claimant commenced employment with the respondent in Cork in February 2007 in the role of contracts manager with responsibility for multiple sites. The role involved managing cleaning operatives, meeting clients, maintaining standards through regular audits and managing budgets. The two other contract managers in the area were RX and KY both had longer service than the claimant. NQ had less service than the claimant. The evidence was that he was site specific manager for UCC although he was also responsible for a number of smaller sites. In addition to his role of contracts manager the claimant was also responsible for industrial contracts as and when they arose. He regularly carried out industrial cleaning in UCC and covered for NQ there when he had been sick for a month and on occasion when he was on holidays and did not accept the respondent’s position that NQ was essential to the UCC contract. He had a good relationship with that client. When RX had a problem with some difficult employees the claimant took over that work.
In 2010 there was a decline in industrial work and the claimant was assigned more site contracts, which put him under a huge level of stress. Over a six to eight month period, he complained to UM almost on a fortnightly basis but she only offered token assistance and assigned him a further new contract in January 2011. He was at breaking point and sent an e-mail outlining these facts to the Operations Support Manager (part of human resources) in January 2011 and indicated he was “buckling under the workload “. The Operations Support Manager arranged a meeting for 17 January 2011 where his issues were discussed and he indicated that his workload of 65/70 hours per week was affecting his health. They agreed that the Operations Support Manager would inform UM about their meeting, which she did and she indicated to UM that he was exhibiting some stress symptoms. UM met the claimant later that day and expressed her disappointment that he had not come directly to her rather than contact the Operations Support Manager. They discussed his contracts and he did not have a problem with any specific contract but he was anxious all the time, not sleeping and stressed by his heavy workload. While UM relieved him of contracts he then had to do more reports and life got even more difficult for him after that. In June 2012 he confided in NQ about his difficulties with UM, who later invited him to a meeting and berated him for being disloyal. UM denied that she berated the claimant.
There was contradictory evidence from the respondent’s managers as to whether revenue was falling in 2012. It did lose the Schering Plough contract in 2012 and when the contract was finally wound down the site specific manager there was made redundant. The claimant did some industrial work on that site. It was UM’s evidence that in a discussion with the managing director, they came to a mutual decision that one position should be made redundant. On 27 August 2012, UM called the claimant to her office where she informed him that the company was performing poorly in the Cork area and that she had decided that his position was redundant. When the claimant queried the selection UM told him she had excluded site specific managers from her considerations. No further explanation was offered and the policy of last in first out (LIFO) was not mentioned. The meeting lasted about 90 seconds. The claimant was given four weeks’ notice of his dismissal and at his request the termination date was extended by a few days. There had been no prior consultation about redundancy. The claimant was not given prior notification of the purpose of the 27 August meeting. The claimant felt he was ambushed.
Determination
Para 30 of the company handbook, which deals with redundancy, provides:
It is recognised that business or economic circumstances may arise which will leave the company with no alternative, but to declare redundancy. Where employees are made redundant, the prime consideration will be to protect the employment of as many consistent with maintaining the full efficient operation of the business. In selection, regard will be paid to the company service needs, skills, suitability and adaptability of employees.
The Tribunal notes that LIFO is not mentioned in this paragraph and accepts the claimant’s evidence that it had not been mentioned to him by UM at their short meeting in in her office on 27 August 2012. Having regard to the above-mentioned para 30 the Tribunal notes that there was no evidence before it that the respondent made any effort to protect the claimant’s employment. Neither voluntary redundancies nor alternatives to redundancy were sought or even discussed. In 2012 the claimant, being responsible for site contracts as well as industrial work, had a broader range of experience that the other site managers and had shown flexibility by taking over from RX when he was having difficulties with some workers. On these grounds the Tribunal finds that the respondent failed to follow its own policy and it is not satisfied that the claimant was not unfairly selected for redundancy. Furthermore, the Tribunal is not satisfied that the selection of the claimant for redundancy was not personal.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal awards the claimant compensation in the sum of €9,000.00 under the Acts. This award is in addition to any other sum already paid to the claimant relating to his dismissal.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)