Logistics firm DHL has been accused of trying to avoid paying a substantial redundancy lump sum to a long-serving warehouseman by telling him he was to go to work at a site on the other side of Dublin - a four-hour return commute from his home.
The worker, stock picker Oscar Solano Fernandez, told the Workplace Relations Commission today that getting to the Tesco distribution centre near Donabate, from his home in the Coombe in Dublin 8 could take between an hour an a half to two hours each way, as he would have to change buses to get there.
By contrast, he had been able to catch a bus at the door of his apartment building and get to his former workplace at Oak Road in Clondalkin in as little as 15 minutes, and could attend to family duties, he told the tribunal.
The employment tribunal was hearing evidence on Mr Solano's complaints under the Redundancy Payments Act 1967, the Unfair Dismissals Act 1977 and the Employment Equality Act 1998.
His barrister, Paul D Maier BL, appearing instructed by Ciarán Ahern of McInnes Dunne Murphy Solicitors, said that at minimum Mr Solano’s employer ought to have offered him redundancy – but that DHL had "fundamentally violated" his client’s terms of employment by employing an "opaque" process to transfer him while making other staff at the Oak Road site redundant.
Counsel further alleged that DHL discriminated against Mr Solano as a father by failing to consider the impact of the move on his family responsibilities.
Mr Solano, originally from Madrid, Spain, said he came to Ireland in 2005 with a former girlfriend and had limited English when he was brought on as an agency cleaner at a DHL warehouse before he was offered a contract of employment with DHL in 2008.
"I don’t have nothing against DHL; they gave me a chance to work with them – but I didn’t want to be spending two, three hours per day going to and back from work, because I have a responsibility to my family. To me, family goes first," Mr Solano said.
He said that prior to his resignation, he and his partner, a bank employee, were paying so that their seven-year-old daughter could stay back after school until he got off work at 4pm and could go and collect her.
Mr Solano said he knew two of his colleagues had made the move to Donabate. His team leader was single with no children, while a woman working an admin job on the client contract he was employed for had one son aged 20.
Peter Spencer, a DHL human resources manager, said in evidence that after the company’s global board announced the sale of the Oak Road site where Mr Solano was working, local management was in talks with the client firms housed there to find new logistics premises on the southside of the capital.
However, when one of the largest clients at the site, Argos, announced that it was pulling out of the Irish market, it became "unviable to look for a property in south Dublin" and it moved to make 37 out of 40 warehouse staff who worked on the Argos contract redundant, the witness said – leaving another 88 office workers and 24 warehouse staff to accommodate.
He said the redundancies were limited to those workers who were "wholly or mainly associated" with the Argos contract.
The arrangements for the others, including Mr Solano, were dealt with by way of collective bargaining with their trade union, Siptu, leading to a deal limiting transfers to locations within 50km of the Clondalkin site and a relocation package consisting of a bonus payment of €1,000 and €5,000 worth of Perx vouchers spread over three years, he said.
"We understand, as an employer, that moving people from the southside to the northside, it’s an ask. We negotiated a relocation package – a substantial package, in our opinion," he added.
Cross-examining the witness, Mr Maier put it to him that the firm had made "twice as many" staff redundant as it relocated.
"I have to put it to you that part of the motivation for keeping people nominally in employment was to avoid paying redundancy," he said.
"We’d absolutely dispute that point," Mr Spencer said.
In a later submission, Mr Maier argued his client was due a minimum statutory redundancy package worth €18,300. His client was also claiming for lost earnings as a result of the drop in his hourly pay in his new job from €15 to €12.80 and compensation for the effects of discrimination.
Niamh Ní Cheallaigh of the Irish Business and Employers’ Confederation (IBEC) argued that the company did not breach Mr Solano’s contract of employment, because his original contract included a "flexibility clause".
"No redundancy situation arose and there was suitable alternative work; that’s demonstrated by the fact that 112 people did relocate. Everyone was treated the same – of those who transferred, 52 had children," she said.
Mr Maier had submitted at an earlier point that European case law made it clear that discrimination arose not only in situations where different policies were applied to individuals in comparable circumstances, but where a fixed policy was applied to people in different circumstances.
"Strictly" applying the policy of only offering redundancy to those workers involved with the Argos contract was "wholly and completely unreasonable" in view of his client’s protected status as a parent, Mr Maier added.
The adjudicator, Brian Dalton, is now considering his decision and will deliver it in writing to the parties at a future date.
