EMPLOYMENT APPEALS TRIBUNAL
Iuliana Clement Comanescu
Dungarvan Shellfish Limited
Iasc Sliogagh Dun Garbhain Teoranta
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O' Mahony B.L.
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this claim at Waterford on 17th May 2016 and 19th July 2016
Claimant: Mr. G. Mc Cullagh Solicitor, McCullagh Higgins & Co Solicitors, 1-2 Cois Mara, Dungarvan, Co Waterford
Respondent: Mr. Neil Breheny, Neil J. Breheny & Co. Solicitors, 4 Canada street Waterford
The determination of the Tribunal is as follows:-
The claimant contends that she was unfairly selected for redundancy.
Summary of Evidence
The respondent has an oyster farming enterprise. The claimant came to Ireland in January 2007 and began working for the respondent as a general operative. Her husband had been working for the respondent since 2003. It was the managing director’s evidence that the claimant was one of the best graders of the oysters.
The summer of 2014 was unusually hot and unsuitable for oyster farming. As weather temperatures increased work continued to decrease. The claimant asked if she could work during the day but the respondent could not facilitate this. Only tidal work was available, which was too early in the morning or too late in the evening for the claimant as she had a young daughter to mind. She suggested taking a break and she sought her P45 for Social Welfare purposes. It was the claimant’s evidence that MD agreed that she would return to full-time work once the weather conditions for the oysters improved. MD denied this assertion. It was MD’s evidence that it was usual for the claimant to take extended leave each year from July to September.
The claimant returned to work in October 2014. The claimant’s husband raised issue with MD about the failure to pay the claimant for the October public holiday and he asked to see her contract of employment. The claimant was ultimately paid for the bank holiday but from then on things changed at work: MD replied to her questions in a raised voice; she was told to go home if she did not like it there; and, her work was criticised. While there was a weekly rota for cleaning the toilets, she and her husband were always first and second on the list. This work was not part of her job description and she felt it was humiliating. MD’s father proposed that she be paid an extra €30.00 per week to clean the toilets but this proposal was ignored.
The October to December period was usually very busy for the respondent because of the demand from the French market during the Christmas period. Oysters were exported to France on alternate days during those months. However, the demand from France collapsed in 2014 due to the fact that oysters had grown at twice the usual rate and the French producers had not even managed to sell their own stocks. Due to the loss of the French market and the over-supply the price of oysters plummeted the respondent was forced to cut costs. MD made a number of employees redundant in December 2014. Selection for redundancy was based on LIFO and the claimant was selected as MD had calculated her service as having commenced in October 2014.
On 19 December 2014 the claimant had a day off work and MD informed her husband that due to the respondent’s financial difficulties her employment was being terminated. The claimant identified a number of employees, who had less service than she but who had been kept on in the employment. The claimant explained that she had been informed that when work was available in January 2015 she would be the first person to be recalled, however this did not happen. Other workers had been recalled and employed in the same capacity as they had been previously working.
Following the collapse of the French market, the respondent decided to diversify. The respondent’s product was highly rated abroad and the respondent realised that their product was being exported from France to China at a considerable mark-up. At the beginning of 2015 the respondent decided to build a purification plant as a step to supplying the Chinese market. This entailed the respondent’s business moving from wholesale to retail. MD did not discuss the new plant with the claimant’s husband on 19 December 2014, as it had not yet been commissioned at that time.
MD outlined that following the purification process the oysters are handpicked with zero per cent deviation on quality. This was particularly important as only samples of the product were provided to the Chinese market over the first three months. To this end the respondent trained a number of employees on the required quality standard of the oysters and guidelines for packing the product for flight. Currently, 95% of oysters produced by the respondent are now exported for retail and the wholesale part of the business in minimal.
It was MD’s evidence that by the end of January or early February 2015 a number of staff who had been let go in December were taken back to work in the purification plant. Two new employees were employed for packing duties. The respondent required employees with a very good level of English as instructions were being given by the Sales Manager from China via telephone. The respondent needed employees who could quickly understand what was being explained as one “wrong” box of product could jeopardise the new operation.
At the time of the redundancies in December 2014, the respondent did not believe the claimant was entitled to a redundancy payment on the basis that she had departed the employment in the summer of 2014 and her subsequent re-engagement in October 2014 was considered a new period of employment. However, on advice, the respondent paid the claimant a redundancy payment on the 18th February 2015. The claimant subsequently lodged an unfair dismissal claim with the Employment Appeals Tribunal. On 1 April 2105 MD wrote to the claimant in the following terms:
“I would like to confirm that I received a letter from the Employment Appeals Tribunal stating that you wished to make an appeal against your redundancy. I was totally unaware that you were not satisfied about your redundancy settlement as you never raised this matter with me. I have sought advice and can confirm to you that if it is your wish to return to work, then this can be done immediately. Please let me know your decision as soon as you can.
You are aware that the company has had a major loss of orders, due to the French oyster market collapsing and this was the reason behind the redundancies. We needed to respond to this calamity. But we also tried to be as fair as possible in selecting staff for redundancies, based on length of service. In your case you had a break in service and this was the basis for your selection at the time. You challenged our calculation of your redundancy payment. We sought advice and found out that you were indeed due additional monies as your break was not legally considered a break for redundancy purposes. These monies were immediately paid to you and you signed an acknowledgement of that receipt. I thought that you were satisfied at this outcome as you have never indicated otherwise to me.
I hope that this offer is acceptable to you.”
The claimant did not believe that this was a genuine offer of employment. In December 2015 her husband had been told that she would be the first to be re-called in January 2015 but she had not been re-called in January. In any event she did not wish to return to an employment where she had been mistreated. She outlined to the Tribunal that when she had been out of work for five weeks in 2009 she had, by agreement, done paperwork for the respondent but had not been paid for it. Deductions had been made from her minimum wage for safety equipment.
The evidence of the claimant’s husband was that following December 2014, he was ignored at work. He subsequently found alternative employment and left the respondent.
The Tribunal finds that the break in the claimant’s employment between 2 July 2014 and 15 October 2014 was an agreed break. This was implicitly accepted by the respondent when it made a redundancy lump sum payment to the claimant on 18 February 2015. Further, it was MD’s evidence that the claimant usually took extended leave in the summer period due to her child-minding responsibilities.
Thus, under article 10 (c) of the first schedule of the Minimum Notice and Termination of Employment Act 1973, as this was an agreed break the claimant’s continuity of service was not broken and ran from the time of the commencement of her employment with the respondent in 2007. In December 2014, selection for redundancy was based on the ‘last in first out’ principle. The claimant had longer service than some employees who were kept on in the employment in December 2014. Accordingly, the claimant’s selection for redundancy was unfair.
The Tribunal awards the claimant the sum of €5,000 under the Unfair Dismissal Acts 1977 to 2007. This award is in addition to the monies already paid by the respondent to the claimant as a redundancy lump sum.
The Tribunal further awards the claimant the sum of €943.28, being the equivalent of four weeks’ wages, as compensation under the Minimum Notice and Termination of Employment Act 1973 to 2005.
The appeal under the Redundancy Payments Acts 1967 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal