EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
– claimant UD1730/2014
against the recommendation of the Rights Commissioner in the case of:
C&F Automotive Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O'Grady
Mr J. Jordan
heard this appeal at Mullingar on 20th November 2015
Claimant(s) : Ms Mary-Paula Guinness B.L instructed by Mr Barry McAlister,
John P Prior & Co, Solicitors, Cogan Street, Oldcastle, Co Meath
Respondent(s) : Mr Thomas Harrington, In House Legal Adviser, C&F Group
C/O C&F Automotive Ltd, Collinstown, Mullingar, Co Westmeath
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the recommendations of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007 reference R-144033-UD-14/JW and the Terms of Employment (Information) Act 1994 to 2012 reference R-143202-TE-14/JW.
The Tribunal has carefully considered the evidence adduced. The appeal under the Unfair Dismissals Act was brought by the claimant and was made with respect to the amount of compensation awarded by the Rights Commissioner. The respondent company did not cross appeal the recommendation.
The claimant commenced employment in August 2007 with a company known as (I). The claimant worked in a variety of departments across the plant and developed a range of skills and expertise associated with the production of metal and other trimmings for various different international car manufacturers. In and around October 2008 a transfer of undertaking occurred when the respondent took over (I) as a going concern in liquidation. The claimant’s service transferred seamlessly over to the respondent company and his ongoing work history is without incident up to 2014.
The Tribunal must accept that the claimant did not have very good English and neither he nor his employer made any effort to ameliorate this fact. The claimant does not appear to have questioned paperwork which he received and no translation was ever provided. It seems in the actual workplace, the claimant got by with a limited number of words and presumably was able to pick up the largely manual tasks by watching demonstrations.
In his evidence, the claimant says he was unexpectedly brought into a meeting on the 6 March 2014 and in the presence of his daughter (a co-worker there to help with his translation) that his employment was terminated by reason of redundancy. The claimant gave evidence to the effect that he had been aware that there had been previous redundancies in the plant but had no idea that his position was in jeopardy. The claimant was understandably upset and within days had engaged a solicitor to write a letter seeking some sort of re-consideration of the decision. This letter was never replied to nor was it suggested that the claimant could formally appeal through the company channels. The redundancy was affected with statutory redundancy being paid some two weeks after the date of the meeting outcome.
In their evidence, the employer outlined very compelling reasons as to how and why redundancy situations arose. The Tribunal fully acknowledges that the car manufacturing business has come under immense pressure in recent years and would expect that the respondent company could not firewall itself against this commercial reality.
The Tribunal accepts the respondent company implemented a range of cost saving measures as outlined, but eventually the respondent in order that the plant might be saved, had to look to making a considerable number of it’s workforce redundant.
In his evidence Mr E explained that the decision once made was relayed to him as production manager and it was his task to formulate a plan and make the selections. Mr E agreed that this was not an easy task and indeed the Tribunal notes that the time span of about only one week passed between being told he had to make redundancies and the calling in of the claimant.
The Tribunal accepts that the claimant had no prior warning that his job was at risk. The Tribunal accept that whilst the claimant’s then position in the Porsche 911 production cell was being moved to Germany this fact was unknown to him in the lead up to the 6 March 2014.
There is no evidence to support that any assessment of the claimant’s skills, abilities, service, loyalty and work rate was taken into consideration. There was no evidence given as to why the claimant was not assessed in any way against those comparators fortunate enough to be kept on.
The Tribunal has no way of knowing if the claimant would have been retained in the event that such an analysis of the workforce been conducted but the Tribunal can be in no doubt that the Rights Commissioner was correct in finding that the claimant was unfairly selected for redundancy first by reason of not having had the chance to compete for those positions that were being retained.
On the basis of the evidence heard the Tribunal finds that the Rights Commissioner’s award is insufficient. The Tribunal varies the award upwards to €15,000.00 and the appeal under the Unfair Dismissals Acts, 1977 to 2007 succeeds. This figure takes into account the claimant’s efforts to mitigate his loss which were not fulsome.
The appeal under the Terms of Employment (Information) Act 1994 to 2012 fails and the recommendation of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal