INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
REAGECON DIAGNOSTICS LIMITED
(REPRESENTED BY BDM BOYLAN SOLICITORS)
- AND -
(REPRESENTED BY ENNIS CITIZENS INFORMATION CENTRE)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision No. R-154927-UD-15/POB
2. The employee appealed the Recommendation of the Adjudication Officerto the Labour Court on the 8th April 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on the 26 July 2016. The following is the Determination of the Court:
This is an appeal by Mr Gerald Kelly against Recommendation of an Adjudication Officer in his claim of unfair dismissal against his former employer Reagecon Diagnostics Limited under the Unfair Dismissals Act 1977 – 2015 (the Act). The Adjudication Officer held in favour of the Complainant’s claim that he was unfairly dismissed and awarded him the sum of €2,500 in compensation. The appeal relates to quantum only. There was no cross appeal by the Employer.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Gerald Kelly will be referred to as “the Complainant” and Reagecon Diagnostics Limited will be referred to as “the Respondents”.
The Complainant commenced employment on 23rdAugust 1999 as a Production Operator, he held a number of positions in the company and finally held the position as QC Technician when his employment ceased on 16thSeptember 2014. He was on a salary of €30,000 on cessation.
The Company is based in Shannon, Co. Clare and manufactures and exports physical and chemical standards and reagents for laboratories worldwide. It employed 86 employees.
Summary of the Complainants’ Case
The Complainant claimed that he was unfairly dismissed, fair procedures were not followed, a genuine redundancy situation did not exist, no selection criteria were deployed and he was not notified of his right to representation or afforded time to have his notice of termination reviewed.
He told the Court that on 15thSeptember 2014, ten minutes before finishing time he was called to a meeting with management who informed him that it was making a number of employees redundant including him; he was offered given pay in lieu of notice; his employment would cease with effect from that date and he was presented with a letter setting out the severance terms offered to him. As this was so unexpected he informed management that he would not sign the document until he got legal advice.
The following day he reported for work, however, he was unable to enter the place of work as the entry codes had been changed. He said that he was met by management in reception who pressurised him into signing a notice of termination and was informed that if he did not sign it that the ex gratia payment on offer would not be paid. He said that he felt pressurised into signing acceptance of the termination notice and was not offered to have a representative present. When he asked to speak to the Managing Director, his request was refused.
The Complainant stated that he felt that he had no time to read through the notice of termination or to seek legal advice on the matter and he therefore signed under duress and pressure at 8.30am that morning.
The Complainant told the Court that he did not have the time to obtain independent legal advice and was in shock at being made redundant. He also stated that two of the roles made redundant that morning were filled by members of staff that same day and another role was filled from outside the company. Furthermore he said that fifteen new employees were taken on around this time. Therefore, he concluded that there was no justification for the redundancy.
The Complainant informed the Court that he had secured alternative employment on a lower salary within ten weeks of his dismissal. He outlined details of the losses he incurred since his dismissal to substantiate his case for an increase in the quantum of the award made.
Summary of the Respondent’s Position
The Respondent submitted that redundancies were required in the Company for operational restructuring reasons and seven roles were made redundant at the time. It examined the possibility of redeployment but concluded that the Complainant did not have the necessary skills for other roles and therefore he was not consulted about possible re-deployment.
The Respondent’s HR Manager gave evidence to the Court. She said that the Respondent accepted that the redundancies occurred without any warning or consultation with employees and she explained that it was felt that this was “the least painful possible way” to effect the reduction in numbers of employee required. She said that the Complainant was not given the option to work out his notice, redeployment options were considered but not discussed with him.
The Respondent submitted that after the Complainant was advised of the redundancy, he sought legal advice. She told the Court that she explained the severance payment document “line by line” to the Complainant.
The Respondent stated that the Complainant signed a document accepting the severance terms, waiving all his rights against it and accepting payment in lieu of notice. In its submission to the Court the Respondent outlined details of the amounts already paid in terms of statutory redundancy, ex-gratia payments and pay in lieu of notice and accordingly disputed the ‘losses’ cited by the Complainant.
Conclusions of the Court
The Court notes that the appeal before the Court related solely to the quantum of compensation awarded, and the Respondent has not appealed the Adjudication Officer’s finding that the Complainant was unfairly dismissed.
It is not disputed that the Complainant’s employment terminated by notice at the end of the working day on 15thSeptember 2015. He was required to sign a notice of termination on the morning of 16thSeptember 2015 and was presented with a severance payment cheque dated 15thSeptember 2015.
It is the Respondent’s case that the Complainant’s employment was terminated by reason of redundancy and he was paid the appropriate monies in discharge of his employment with the Company.
While the Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary, however, no evidence was adduced to show that any or adequate consideration was given to whether or not the Complainant’s selection for redundancy was fair or whether there were alternative roles he could be redeployed to. While the Court accepts that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain his employment should also have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved. The Respondent has not proffered any evidence of having done so.
The Court has also been influenced by the manner in which the Complainant was dismissed. He was given no prior warning of what was in contemplation. He was not given any opportunity to try and influence the Respondent on his own behalf. He was dismissed in a most insensitive manner. On the evidence as a whole, the Court has concluded that the Respondent has not proved that the Complainant’s selection for redundancy was fair. In these circumstances, the Court has concluded that the dismissal was unfair.
The Court is satisfied that the Complainant discharged his duty to mitigate his loss. Taking into account monies already paid to the Complainant by the Respondent, the Court measures the financial loss suffered by the Complainant, both retrospectively and prospectively, at €5000.00. The Complainant is awarded compensation in that amount. For the avoidance of doubt this award is in addition to all payments already received by him in connection with the termination of his employment including a redundancy payment.
For all the reasons set out herein the Court is satisfied that the Complainant was unfairly dismissed. The Court orders the Respondent to pay the Complainant compensation in the amount of €5000.00. Accordingly, the Decision of the Adjudication Officer is varied and the appeal is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
11 August 2016Deputy Chairman
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.