Malone v Timac Albatross Ltd

• Jurisdiction: Ireland
• Judgment Date: 22 January 2007
• Judgment citation (vLex): [2007] 1 JIEC 2203
• Date: 22 January 2007
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Malone (claimant) v Timac Albatross Ltd (respondent)

Abstract:

Employment law - Unfair dismissal - Whether claimant unfairly dismissed - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CASE NO

UD339/2005, MN252/2005

CLAIM OF:

Niall Malone, Aughnnanure, Oughterard, Co. Galway

Against

Timac Albatross-Limited, Arena House, Arena Road, Sandyford, Dublin 18

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2001

INIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:	Mr. C. Guiney B.L.
Members:	Mr. W. Power
	Mr. S. Nolan

heard this claim at Dublin on 10th September 2005, 16th December 2005,16th March 2006, 29th June 2006 and 21st September 2006

Facts The claimant was the commercial manager. He stated that he was invited to a meeting and a proposal was put to him that he consider the new position of marketing manager. He felt that he was being pushed out and stated that on three occasions he was told that if he did not accept the new position he could resign.

Held by the Tribunal in awarding the claimant Eur86,000 that he was unfairly dismissed from his position as commercial director. The claimant was not in a position to accept the role of marketing director because he never agreed a job description for the post with the respondent.

1 The determination of the Tribunal was as follows:

Respondent's Case

2 The respondent is a multi-national company involved in the distribution and sales of agricultural products. The company has been present in Ireland for several years and changed its name in January 2005. The current managing director (JP) started in that position in October 2002 and was familiar with the claimant's role and circumstances. Prior to giving evidence in relation to the claimant JP outlined the structure of the respondent. Ireland was divided into five regions each with a director. Sales representatives reported to those regional directors and they in turn were responsible to the commercial director. The claimant held the position of commercial director. When the respondent proposed a change in the claimant's title and function within the company in early 2004, difficulties eventually emerged between the parties, which culminated in the claimant's dismissal later that year.

3 At a meeting in France towards the end of 2003 the respondent decided to create a new position of marketing manager. It was felt that through his contacts, knowledge and expertise that the claimant would be suitable for that post. During the course of a flight between Dublin and Bristol in January 2004 the witness introduced the claimant to that proposal. Both parties then met with the chairman of the respondent and discussed this planned change. The claimant queried some aspects of that proposal and JP was certain “without a shadow of doubt” that the claimant accepted the offer to become the respondent's marketing manager. JP described the claimant's reaction to the proposal as extremely positive.

4 According to JP the claimant also agreed to undertake a transition. period where he would continue as commercial manager while acting as marketing manager. The chairman indicated to the claimant that he could write his own job description. JP referred to an email received by him from the claimant dated 23rd January 2004 where the claimant mentioned a remuneration package for the new position and an attachment containing a job description for the post of marketing manager. A further job description for that post from the claimant sent on 26th March 2004 “was in line” with what was discussed in Bristol.

5 In addition JP made references to minutes compiled by the claimant at a regional meeting on 4th February 2004. Points 2.2 and 2.3 clearly stated that the claimant 'is to be promote(d) to the' position of marketing manager”. In a further email to the witness in late February 2004 the claimant sought details of meetings for 2004 that he would attend in his capacity as marketing manager.. The chairman confirmed that the claimant attended such meetings in Paris that year.

6 A recruitment drive was held to appoint another commercial director to the western region. The claimant had managed that area for a brief time and was familiar with it. Mention was made of a laboratory region that was smaller than the team needed for the western region. In a section of a memorandums dated 14th June 2004 addressed to the chairman, the claimant commented on his ongoing concerns about his operational and strategic roles in the marketing, laboratory and western region. JP said that he did not recall the claimant voicing these concerns earlier.

7 In a standard report submitted by the claimant to JP at the end of June 2004 the claimant commented that he could not understand the company's refusal to give him a job description for marketing manager. He also expressed surprise that the respondent would recruit a commercial director without his agreement. JP found those comments “extremely astonishing” and wrote a lengthy letter to the claimant in reply. The chairman clearly stated that once the claimant settled the role of marketing manager, he had no right to interfere with the appointment of a commercial director. JP, who could not understand the claimant's behaviour, received correspondence from him dated 7th July 2004 and from his solicitors two days later. JP denied that the claimant had been demoted.

8 A personal assistant attended a meeting between the claimant and JP on 14th July 2004. She took minutes of that meeting which were typed up without delay. The purpose of that meeting was to clarify the claimant's position within the company. The laboratory situation was discussed and a draft job description for the position of marketing manager was produced. JP had the impression that the claimant left the meeting happier about his place within the company. The respondent had newly recruited a commercial director. A report of a regional manager meeting on 15th July 2004 was prepared by the claimant which contained the comment that the company had decided it was not the best time to go ahead with the laboratory region in the West. The witness took leave from 19th July to 6th August 2004.

9 While on leave the chairman received a voicemail message from the claimant stating that he was not prepared to accept the position of marketing manger. This along with other details was furnished to the claimant's solicitors in a letter dated 20th July 2004. JP said he was not aware of the claimant's earlier...