EMPLOYMENT APPEALS TRIBUNAL
Clare Local Development Company
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Ms H. Murphy
heard this appeal at Ennis on 28th April and 24th June 2016
Employer : Ms Mairead Crosby, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
Respondent : Mr Pat O'Donoghue, SIPTU, Liberty Hall, Dublin 1
This case came before the Tribunal by way of an appeal by the employer against a decision by a Rights’ Commissioner reference r-146624-ud-14
The determination of the Tribunal was as follows:
In this determination the appellant will be referred to as the employer and the respondent as the employee.
The employer provides social and economic support for the people and communities in its county. It depends largely on state and public funding to allow it to carry out its activities.
The employee commenced employment in late 2002 with Co A., which was located across the road from her home. In 2009 Co A was one of four organisations which amalgamated to form the employer company. As a result of the amalgamation the employee’s place of work changed to Ennis, some 36 miles from her home. The employee worked a 35-hour week comprised of 4 x 8.5 hrs per day plus one hour per week for travel. This concession resulted from her transfer from Kilkee.
A clause to this effect was included in the employee’s contract of employment, which was signed by her and the employer on 6 April 2011. The employee was one of a small team in the administrative and financial section of the employer company. As the employee did not drive she relied on a lift to and from work.
Pobal wrote to the employer in late 2011, identifying weaknesses in its strategic three-year plan. In 2012 the employer committed to reducing administration costs to 25% of budget by 2014. In late 2013 the administration workload had reduced and the employer decided to reduce the weekly working hours of the employee from 35 to 28 over her standard four-day week.
The employer’s financial controller (FC) met with the employee on 13 December 2013 and informed her that her hours were being reduced to 28 per week comprising of 4 x 7-hour days. The claimant’s position was that she was not willing to work the reduced hours over the same number of days (4) and because it would mean that she would have to wait 1.5 hours each evening for her lift home. FC maintained that the latter reason had never been mentioned by the employee during the entire engagement between the parties on the issue of the reduction in her hours. The employee’s evidence was that when she mentioned it to FC at the 13 December meeting, FC responded, telling her that she had until 1 February 2014 to arrange a lift. Her lift home was one of the reasons she wanted the later finish.
FC told the employee that the one- hour travel time allowance only related to the 35-hour week. The employer’s position was that the employee was the only full-time administrator and that another administrator was already on a three-day week but the claimant’s evidence was that the employee who had been reduced to three days had later declined the opportunity to return to a full week. The employee queried whether her role as staff representative bringing issues to the Liaison Group had contributed to her being selected for the reduction in her hours. At the end of the meeting the employee was afforded the facility to forward any questions, she may have, in writing to FC.
By letter of 16 December 2013 the employer’s CEO formally notified the employee that due to a reduction in the administration budget and in administration workload her weekly hours were being reduced from 35 to 28 to be worked over a four day period, effective from I February 2014.
The matter was taken up again at a further meeting on 31 January 2014. The employee was accompanied by her trade union representatives (TU) and the respondent’s CEO and FC attended on behalf of the employer. Much the same ground was traversed at this meeting but an agreement was not reached. The employee proposed an alternative arrangement for working the 28-hour week: a 3x8.5-hour days with the shortfall in hours being made up by working an additional 6-hour day each month, around the time the monthly payroll was being prepared, to make up the shortfall. The employee wanted it to be known that her pay had been reduced when she transferred into the employer company in 2009. In a direct response to TU, CEO informed her that the employer was not prepared to negotiate on its requirement for a 4x7-hour day as this was necessary to ensure adequate staff cover. The employer also wanted a 7-hour day policy applied to all other staff. Agreement was not reached. The employer referred to clause 17 of the employee’s contract which permitted the employer to put an employee on short–time.
At a meeting on 7 February 2014 the employer informed the employee that it was considering making her full-time position redundant and creating a new 28/21 hour position. The employee was given until 12 February to put forward alternative proposals. The employee was not interested in a 21-hour week. The next meeting did not take place until 26 February 2014.
In her e-mail of 20 February 2014 the employee clarified that her issue was not so much the reduction in her hours but that while making a 7-hour reduction in her weekly hours the employer still expected her to work the same number of days per week. The employee felt this was unfair. In this e-mail she proposed working 3x8.5 hours (which including her one travel hour per week would be 25.5+1=26.5) and that she would work an extra day per month or that she would work a three-day and four-day week on alternate weeks. The employer did not agree to the employee’s proposals.
At the final meeting on 26 February 2014, the employer informed the employee and her representatives that her position was being made redundant. In her letter of 28 February 2014, CEO confirmed that her position was made redundant due to the reduction in her department’s workload and the requirement to reduce administration costs and that her employment would end on the expiry of her notice period on 11 April 2014.
The employee appealed her dismissal on grounds of unfair selection for redundancy and the employer’s failure to negotiate. The appeal was heard on 8 April 2014 by AO (the Chairman of the HR Committed) and the employee was represented by her trade union (TU). TU voiced concern about the presence of FC, as note-taker. TU was also concerned that the employer was not adhering to its own staff handbook with regards to grievances being heard by the whole HR committee as opposed to just the Chairman but the employer’s position was that this was a redundancy appeal and not a grievance and the former is not dealt with in the company handbook. His mandate from the Board of the appellate company was to listen and not to mediate, negotiate or discuss issues with the employee. AO accepted the employee agreed to work 28 hours but only under certain circumstances and he felt she needed to make some movement on her position.
The employee raised a number of issues at her appeal, including inter alia: although she suffered a 7-hour reduction she was expected the same four days as heretofore; no one else had been selected for redundancy or had her hours reduced; administration work can be done at any time and she is neither the first in or last out from work each day; she had been the only one forced to transfer to the employer from Kilkee and her contract entitled her to one travel hour per week; budget cuts had not been explained or various options had not been explored; and, her selection for redundancy had been for personal reasons. On 10 April AO informed the employee that appeal was unsuccessful. No reasons were given for the decision.
The Tribunal finds that the real reason for the employee’s dismissal was the failure by the parties to reach an agreement as to the number of days over which the employee’s reduced hours would be worked.
The employee put forward various alternatives as to how she might work the reduced hours, most of which involved working 3 days per week but one involved working 4 days per week on alternate weeks. The employer remained inflexible on the issue, insisting that the employee work four days each week.
The reasons put forward by the employer for requiring the employee to work a 7-hour day do not stand up to scrutiny. The employee had worked unsupervised for several hours each week for the previous 5 years without issue. While the Tribunal understands a requirement to have someone in the office in order to meet customers and to deal with general queries, the employer made no effort to restructure the hours of the administration staff to cater for these situations or even examine it as a possibility.
The employee was the only one who moved from Kilkee to Ennis at the time of the transfer and the 4x 8.5-hour day was an accommodation afforded to her at that time. The employer ignored this contractual entitlement. There was no agreement to introducing a 7-hour working day policy. The Tribunal accepts, on the balance of probability, that the employee mentioned the fact that she depended on a lift to and from work at the meeting on 13 December 2013. Working 7-hour days would interfere with her lift arrangements.
There was no evidence before the Tribunal of any consideration having been given by the employer to any alternative means for achieving the desired 25% administration component of the budget. Cutting management salaries or cuts across the board were not considered and there had not been any cuts for a number of years. Under the employer’s requirement the whole burden of meeting the 25% administration target was to fall unfairly on the employee.
Clause 23 of the employee’s contract of employment, signed on 5 April 2011, provides:
“The employer reserves the right to make reasonable changes to any of your terms and conditions of employment.”
For the reasons set out above, the Tribunal finds that the employer’s action in dismissing the employee because she would not adhere to its requirement to work the reduced hours over 4x7-hour days was not a reasonable change to the employee’s contract of employment. Thus, the Tribunal finds the dismissal unfair.
The failure to furnish the employee with a copy of the employer’s submissions or at the very least to acquaint her with its contents during the appeal hearing was a serious flaw. That submission contained information on favourable terms enjoyed by the employee vis a vis other employees, without providing any relevant context and the employee was not given the opportunity to address these at the appe al hearing. There was no evidence from which the Tribunal could be satisfied that AO had given adequate or any consideration to the employee’s grounds of appeal or that he had approached the appeal with an open mind.
For all these reasons the appeal against the recommendation of the Rights’ Commissioner fails and the Tribunal, in varying that recommendation, awards the employee €35,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal