SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
TOLERANCE TECHNOLOGIES LIMITED
- AND -
(REPRESENTED BY PIERSE MCCARTHY LUCEY SOLICITORS)
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Ms O'Donnell
1. An appeal of an Adjudication Officer's recommendation no. ADJ-00000598.
2. The employer appealed the recommendation of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 10th June 2016. A Labour Court hearing took place on the 27th October 2016. The following is the Determination of the Court:
This matter comes before the Court as an appeal by Tolerance Technologies (the Appellant) of a decision of an Adjudication Officer made on 1th May 2016 under the Unfair Dismissals Act, 1997 to 1993. The Adjudication Officer decided that the dismissal of Joe Foran (the Respondent) by his former employer, the Appellant, was unfair and awarded the sum of €35,000 in compensation.
The Respondent was employed by the Appellant from 2ndJuly 2012 until the termination of his employment on 27thOctober 2015.
The Fact of Dismissal
The fact of dismissal was not in dispute.
Position of the Respondent
The Respondent contended that his dismissal was carried out in a manner devoid of fair procedure. He contends that he was dismissed from his job without prior notice on 27thOctober 2015. He states that he was advised on that day by the Chairman of the Board, Mr M, that he was selected for redundancy effective immediately.
The Respondent states that he was called to a meeting on 27thOctober where he was informed of his dismissal. That meeting was adjourned to 28thOctober and the Respondent asserts that he put forward alternatives to redundancy and asked to speak with the Board. The Respondent states that his request for a meeting with the Board was refused and his suggestions as regards alternatives to his redundancy were not accepted. The Respondent states that he refused to sign documents which were proffered to him on the 27thand again on the 28thOctober 2015.
The Respondent states that no consultation took place in advance of the decision to dismiss and that no alternatives were explored. The Respondent states that he was not afforded a right of appeal or a right of representation. He states that the dismissal was carried out in an expedited and personalised way.
The Respondent states that the actions of management in the months prior to his dismissal led to a deterioration in his health. He states that another person was employed a few months prior to the Respondent’s dismissal and that the role to which that person was recruited was the same as that of the Respondent.
The Respondent states that he was not considered or interviewed for vacant positions as they arose at or around the time of his dismissal and that other personnel were appointed.
The Respondent states that a pay rise was conceded by the Appellant prior to the dismissal of the Respondent. The Respondent contends that he was not offered a re-deployment within the company or to another company within the group.
The Respondent states that he was not allowed to work his notice and that this impacted his relationship with colleagues, suppliers and contacts.
The Respondent contends that he had an exemplary work performance history with the Appellant and several other companies and that events within the company in the months prior to his dismissal had an effect on his health.
The Respondent contends that he raised a grievance within the Appellant company in the months before his dismissal and that this action was relevant to the Appellant’s decision to dismiss him.
Position of the Appellant
The Appellant contended that the dismissal of the Respondent was a redundancy necessitated by challenges facing the business.
The Appellant states that it failed to secure two major contracts in 2014 and in 2015. The Appellant states that it recruited a business development consultant on a fixed term contract. The Appellant states that this person never took over the duties of the Respondent after the redundancy of the Respondent. The Appellant states also that this person was never appointed general manager or managing director.
The Appellant acknowledges that a grievance was raised by the Respondent in August 2015 and that a meeting took place between the Respondent and the Managing Director and Chairman of the Appellant on 11thSeptember 2015 in that regard. The Appellant contended that the matters raised by the Respondent were resolved as a result of that meeting.
The Appellant states that a meeting of the Board of the Company took place on 23rdOctober 2015 which reviewed the management accounts of the business. That Board meeting, according to the Appellant, decided to take a number of steps to facilitate a continuation of the business. The Appellant asserts that one of those decisions was to review management requirements in order to preserve the company’s manufacturing capability. Those actions included the making redundant of the position of Operations Manager (the position held by the Respondent) in addition to all other contracted expertise. The actions, according to the Appellant, included the Managing Director taking over the functions associated with the role of Operations Manager as well as a range of other functions. The Managing Director continues to discharge these roles and functions according to the Appellant.
The Appellant asserts that, at the time of the redundancy of the Respondent, the Appellant employed 10 direct staff, 6 indirect staff and 1 part-time staff member (17 persons in total). The Appellant asserts that at the date of the hearing the Appellant employed 7 direct staff and 2 part-time staff (9 persons in total).
The Appellant asserts that the Respondent partook in re-structuring discussions in April 2015 and was conversant with the financial challenges facing the company.
The Chairman of the Company met with the Respondent on 27thOctober 2015 and according to the Appellant that meeting adjourned and resumed on 28thOctober 2015.
The Appellant acknowledges that, on 28thOctober, a range of suggested alternatives to redundancy were explored but which were not viable for reasons stated at the hearing of the Court.
The Appellant states that the Respondent was asked on the day to return certain company property which he did. The Appellant states also that the Respondent was advised that he would be paid in lieu of his notice and that the Respondent did not raise any objection to that proposition.
Discussion and Conclusions
The Court has considered in detail the written and oral submissions of the parties.
It is clear to the Court that the Appellant, in the manner in which it executed the dismissal of the Respondent, engaged in the minimum of consultation and in effect put a decision rather than a proposal to the Respondent at a meeting on 27thand 28thOctober. The Court notes that some engagement took place as regards alternatives which might exist on 28thOctober.
It is clear to the Court also that the Appellant made no avenue of appeal available to the Respondent in a situation where the Respondent was dissatisfied with the decision to terminate his employment with the Appellant.
The Court is required in the first instance to consider whether a genuine redundancy of the Respondent’s position was at issue in the within case.
The Court has taken note of the financial position of the Appellant at and before the material time as evidenced by the financial details submitted to the Court.
The Court accepts the company’s evidence that the Managing Director assumed the functions of the Respondent in addition to a range of other functions. The Court accepts the evidence of the Appellant that the position of the Respondent was not replaced by recruitment or by any other means than the assignment of functions to the Managing director.
The Court notes that employment levels in the Appellant company fell from seventeen persons to nine persons during the re-structuring of the Appellant’s business.
The Court accepts that the position of the Respondent became redundant in October 2015.
The Court, while finding that the Respondent’s position was redundant also finds that the manner of his dismissal as result was procedurally unfair. The Respondent was not consulted adequately, he was not afforded representation at the meeting on 27thOctober 2015 and he was denied the opportunity to engage with the Company Board when he requested that facility in a situation where he was not satisfied with the termination of his employment which had been communicated to him at a meeting on 27thand 28thOctober 2015.
The Court notes the provisions of Section 6(7) of the Act (as amended) in relevant part as follows:
- (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
The Court considers that, notwithstanding the fact of the redundancy of the position of the Respondent, the conduct of the Appellant in relation to the dismissal cannot be held to have been reasonable.
For this reason the Court finds that the Respondent was unfairly dismissed.
The Court finds, for the reasons stated above, that the Respondent was unfairly dismissed. The Court finds that the position of the Respondent was redundant. The Court requires that the Appellant pay to the Respondent the sum of €20,000 being the amount the Court considers just and equitable in all of the circumstances. The decision of the Adjudication Officer is varied accordingly.
The Court so determines
Signed on behalf of the Labour Court
12th December, 2016Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.