EMPLOYMENT APPEALS TRIBUNAL
M & J Gleeson & Co T/A C & C Glesson
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. L. Tobin
Ms M. Mulcahy
heard this claim at Dublin on 8th December 2016
Claimant(s) : Mr. James Doran B.L. instructed by Ms Helen Doyle, DM Macaulay & Co, Cuilin, Allies River Road, Rathmichael, Co Wicklow
Respondent(s) : Ms. Roisin Bradley, Ibec, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
This case was heard in conjunction with PW14/2015.
Summary of evidence
The fact of dismissal was not in dispute. The claimant commenced employment with the respondent in June 2007 as a Bond Supervisor in depot C. He worked with the respondent until he was made redundant in June 2014.
In 2009 the role of Bond Supervisor was transferred to the Keeper Road depot. The claimant transferred from depot C to Keeper Road. Soon after, the claimant was promoted to the role of Warehouse Manager in Keeper Road. In October 2012 the claimant’s Line Manager, who was also the claimant’s brother (RM) asked the claimant to move to the depot in Cherry Orchard on promotion to Logistics Manager. According to the claimant RM promised him a salary amounting to €55,000. The claimant took the promotion and told the Tribunal that this depot was known to be a problem depot with sixty staff to deal with. The claimant was working 13 hours per day, five days per week. A Mr. G took over the claimant’s role in Keeper Road.
It transpired that no pay rise was subsequently forthcoming and in September 2013 RM told the claimant he would not be receiving an increase in salary as the whole operation was under review due to new ownership.
On 11th March 2014, staff were informed that the company was consolidating its Dublin
Operations to the Keeper Road depot. As such the Cherry Orchard depot would be closing
with 17 redundancies, including the claimant’s position. The claimant was informed of alternative roles available and the deadline of 26th March 2014 was extended to facilitate the claimant in relation to any alternate position he would like to apply for. The claimant applied for the role of General Operative but as his application was received after the extended deadline, the respondent informed him that his late application could not be accepted.
The respondent denied that the claimant was unfairly selected for redundancy.
The claimant gave evidence of loss and his efforts to mitigate his loss.
Section 6 (3) of the Unfair Dismissals Act:
“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either –
(a) The selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in the subsection (2) of this section or another matter that would not be a ground justifying dismissal, or
(b) He was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal”
No doubt that all the employees in the Cherry Orchard depot were made redundant and therefore there was no person “in similar” employment in that depot to whom “the circumstances constituting the redundancy applied equally”.
Apart from that there was no evidence of a Trade Union agreement or custom and practice relating to redundancy as required by sub section b) above.
The claimant’s counsel did point to another person, a Mr. G who had taken over the claimant’s position in Keeper Road when the claimant was transferred. That person did not work at Cherry Orchard and therefore the circumstance constituting the redundancy “did not apply equally” and he is not therefore a valid comparator for the purposes of the subsection.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 20067, fails.
Sealed with the Seal of the
Employment Appeals Tribunal