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The recent Employment Appeals Tribunal decision of Gillian Free v Oxigen Environmental UD 206/2011 concerned a claim for unfair dismissal on the grounds the claimant was unfairly selected for redundancy and fair procedure was not followed.

The claimant commenced in the role of Environmental Compliance Officer and was promoted several times ultimately to the role of Environmental Manager. On 28th April 2010 the claimant was informed that both her role and that of her line manager were in danger of being made redundant. The next day the claimant was told that the compliance structure was being flattened and her role would cease to exist. On 26th May 2010 the claimant was given formal notice of redundancy and Form RP50.

The former Managing Director of the company gave evidence that the company decided at a meeting in a hotel in County Louth on 23rd April 2010 to dismiss the claimant and another employee on the grounds of redundancy.

In its determination the Tribunal was “not satisfied that the respondent acted fairly and reasonably” when addressing the need to reduce the number of employees and specifically noted “when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundacy….then the employer must act fairly and reasonably”.

The Tribunal further noted that the respondent kept taking away part of the claimant’s job and interviewing had taken place on 12th May 2010 for an alternative position and the job specification was not formulated until 14th May 2010. The Tribunal took the view that the claimant could have done a health and safety manager job which ultimately took on a construction related title given that she had no construction related qualification. The Tribunal noted that the respondent tried to row back and disadvantage the claimant.

The Tribunal determined that the respondent did not act fairly and reasonably towards the claimant in that:

1. The decision to make the claimant redundant was taken at a hotel meeting on 23rd April 2010.
2. There was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial and the decision to make the position redundant was taken before the consultation process began.
3. There was no suitable or substantial consideration given to alternatives to dismiss the claimant.
4. There was no worthwhile discussion in relation to criteria used to select the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should consider other positions the claimant is capable of.

The Tribunal referred to Section 6(3) of the Unfair Dismissal Act 1977 (as amended) and Section 5 of the Unfair Dismissal Act 1993 (as amended) concerning the concept of employer reasonableness.

The Tribunal also noted that the claimant did not appeal the decision to dismiss but it would have been to the chairman who originally made the decision to dismiss the claimant and therefore this was entirely inappropriate and contrary to fair procedures.

The Tribunal ruled that the claimant was unfairly dismissed and awarded her €50,000 under the Unfair Dismissal Acts 1977 (as amended) in addition to the €10,000 already received under the Redundancy Payments Acts 1967 (as amended).

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