EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Aidan Lynch UD1611/2014
-Appellant
against the recommendation of the Rights Commissioner in the case of:
Aidan Lynch
-Appellant
-v-
Carmichael Centre For Voluntary Groups
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. F. Moloney
Ms M. Mulcahy
heard this appeal at Dublin on 5th January 2016, 3rd March 2016 and 4th March 2016
Representation:
Appellant: In person
Respondent: Mr Peter McInnes, McInnes Dunne,
Solicitors, Lower Ground Floor, 78 Merrion Square, Dublin 2
The determination of the Tribunal was as follows:
This case is before the Tribunal by way of the employee (the appellant), appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-143292-ud-14/JT).
Determination:
The Tribunal has carefully considered the evidence adduced in the course of the three days of oral hearings, together with the documentary evidence, and having listened to the submissions made by both parties. In addition, the Tribunal has had sight of the Community Employment Procedures Manual made available to it.
This matter comes before the Tribunal on foot of an appeal from a recommendation of the Rights Commissioner dated 21st October 2014 and which found the appellant’s selection for redundancy was not unfair.
The appellant worked with the respondent from 2008. The respondent employer is involved in the provision of a space together with support facilities to voluntary and charity groups and operates out of the respondent’s premises in Dublin. Up to 40 groups use the services provided by the respondent at any one time. To support the requirements of these many and varied bodies, the respondent provides on-site staff to ensure the smooth and effective running of the support services which would include IT services, postal services, catering services as well as the provision of a warm, secure and safe environment in which the various charities and volunteer groups can conduct their business.
The appellant’s position was that of Assistant to the Facilities Officer as well as providing support to the Corporate Services Manager within the operation. The appellant worked a 39 hour/5 day week including Saturdays and two late evenings. The appellant’s salary was primarily funded under the patronage of Pobal and allocation made through a Community Services Programme (CSP). Pobal provide payment for hours and the respondent is required to submit a plan every 3 to 4 years seeking the allocation of hours to be distributed amongst specific employees carrying out tasks and functions. The allocation of funding is very carefully scrutinised and audited and an employee’s salary might well have to be supplemented by other funds (such as rental income) where the monies granted fell short of the hours needed by the Centre.
In the course of the hearing some time was given over to certain workplace issues raised in the course of the appellant’s employment. In this regard the Tribunal heard evidence in connection with the inappropriate accessing of material on an open computer, allegations of postal fraud, the payment of a day’s wages when people were on holiday and the standards operating in the kitchen areas. The appellant puts forward the proposition that his vigilance in these matters was to have a significant effect on his position in the company and, in particular, he believes he was ultimately victimised for being as he put it, “a thorn in the side” of his employer.
As against this, the Chief Executive DOC gave evidence that the respondent went through a period of budget cuts over the period from 2010 to 2013 which saw, for example, the HSE cut its much needed support for the programme from €250,000.00 per annum to €50,000.00. Reserves were being used up and the deficit year on year was anticipated and it was predicted, at Board level, that the respondent would close within three years without a radical overhaul.
By April 2013 the Board had set up a task force made up of its own members and tasked with the job of determining what the respondent could actively do to turn around its fortunes. The task force looked to increase the volume of uptake and usage of the premises on the one hand to generate income and on the other hand to look to its cost base which inevitably brought the issue of salaries into focus as 75% of its annual outlay went on the remuneration of its 57 staff.
The task force looked at the nature of the jobs held down in the Centre and determined that frontline positions i.e. those jobs that interfaced particularly with the service users needed to be retained as being fundamental to the generation of income now and into the future. In those circumstances non frontline positions in management, supervision and administration were all considered less essential. KS gave evidence to the effect that certain classes of jobs were identified to the Board though no names were either given or known by the task force members.
Ultimately the task force indicated that a €215,000.00 saving on expenditure was required and whilst income growth was also being sought this option was more about a long term strategy than a quick fix. The Board directed the Chief Executive to proceed towards making the savings sought and to effect redundancies where necessary.
By mid-September a meeting of staff was called and the need to reduce staff numbers was vocalised. The appellant did not attend the meeting but was put on notice (by letter dated 11th September 2013) of the meeting agenda.
In line with its outlined consultation process, the appellant attended a one-to-one with the Chief Executive which took place on 17th September 2013.
There can be no doubt that the appellant who saw himself as integral to the smooth running of the respondent’s facility, was greatly shocked when he was told that his position as Assistant Facility Manager was being considered for redundancy. The Chief Executive gave evidence that the Facility Manager (appellant’s Line Manager) was being retained but that of Assistant was capable of being absorbed by other members of staff including the Facilities Manager.
It is worth noting at this point that it was explained to the appellant during the course of this meeting that the 39 hours of his remuneration discharged by Pobal could be used more strategically in the direct provision of services to clients and end users. The appellant was not unaware therefore that the plan was to take those 39 hours of pay and try and use them in a more efficient and possibly income generating way.
The appellant was invited to take part in a two way consultation on how redundancy might be avoided. Whether the respondent was ever open to any persuasion on the retention of Assistant Facility Manager position or retaining the appellant in any other capacity is not known to the Tribunal as no effort was made by the appellant at this time to try and salvage any aspect of his employment or put forward any other skillset he had and which might be useful to the respondent. The respondent went to great lengths to point out to the Tribunal for example that a member of the IT support staff managed to persuade the respondent that his services were in fact frontline and worthy of retention.
The Tribunal fully accepts that the respondent was conversely also in the process of acquiring staff and it is accepted by the Tribunal that staff positions are sought by the respondent and sanctioned by the Department of Social Protection under the Community Employment Schemes which also operated under the respondent’s roof. The Tribunal has to accept that the Department demands an open and fair interview and selection process and that when CE positions become available it is not possible to slide a serving member of staff into such a position as the Department would not sanction such an action.
It is common case and was commonly known that earlier on in May 2013 following the departure of a member of staff, the position of Community Employment Supervisor was advertised and that position was openly advertised up to three times before being filled in May of 2014. The appellant says that he applied for this position but the Tribunal has no proof of this application and even if it did, it is doubtful that the appellant had the requisite qualifications as the Personal Development Officer role he may have held in the past would not have given him sufficient experience to qualify for CE Supervisor. In any event, this particular position was not discussed in the process before redundancy.
Towards the end of October 2013 the parties did engage by correspondence and at one meeting the appellant did put forward the proposition that his dealings with ‘An Post’ had had a positive financial implication for the respondent and whilst this was not contradicted, the overall picture of diminishing returns in the post and catering services were a reflection on the Assistant Facility Manager’s difficulty in generating income.
The appellant also proposed that his position should be retained in circumstances where he acted up to the position of Facility Manager (when the actual Facility Manager was not on the premises) and he would also very often (late Tuesdays and Thursdays and all day Saturdays) in effect be acting as CE supervisor. The appellant saw this function as being an essential function which he fulfilled in the ‘out of hours’ periods. The respondent’s response to this proposition was that requirements set down by FAS were that a CE Supervisory role was only expected during ‘core’ hours and not otherwise. The Tribunal would accept that there was some vagueness attaching to this requirement and it was disappointing for the appellant to be told that a function he believed was essential was not regarded as such by his employer. For their part, the respondent invited the Tribunal to be cognisant of the fact that neither the Annual Audits nor the general overseeing of the premises had never raised issues of supervision on CE personnel and the appellant could not therefore impose standards that were not demanded by the Department of Social Protection.
On balance, the Tribunal has to accept that the respondent acted fairly, reasonably and in a reasoned way in the course of the consultative process which ended on 11th December 2013 when the appellant was advised of the termination of his employment. The appellant was advised of his right to appeal which was dealt with by FW and KS, the Chair and ordinary Board Member.
The appeal was raised on the issue of the “supervision” aspect of the appellant’s role and the two Board members satisfied themselves that a representative of the Department interpreted the Operational Guidelines as the respondent had maintained they could; wherein supervision should be available at peak and essential times which by implication meant that off peak times were not covered.
The Tribunal would be remiss in not expressing its concern at the optics of the presence of KS on the appeal panel. The Tribunal has no desire to criticise KS whose actual performance was without taint. The Tribunal must look to how it is perceived that a member of the task force who had submitted a need for redundancies to the Board should also be assigned to the appeal hearing of one of the redundancies ultimately implemented. It is most unsatisfactory.
In reaching a decision the Tribunal notes this procedural flaw as being capable of rendering the dismissal unfair but only in the most technical way and will therefore award the sum of €5,000.00 compensation over and above the award of redundancy already made.
The Tribunal upsets the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)