Shipping company employee awarded €30,000 for unfair dismissal

A former shipping company employee who was made redundant had actually been sacked to make way for another employee, an Appeals Court has ruled.

Vanessa Fenech went to the Industrial Relations Tribunal in 2012 after she was dismissed by her employer, SL Ship Management Company Ltd, with the excuse that business had slowed down and a restructuring exercise was needed.

Ms Fenech was told that an existing employee would absorb her duties but later found out that the company had employed someone from outside to do the job.

She argued that, if the vacancy were to arise again within a year, she had the right of first refusal.

The company said it had acted within its rights and that Ms Fenech’s replacement had provided his services to the company, and the group, for several years.

The Industrial Tribunal ruled in 2014 that Ms Fenech had been unfairly dismissed and that her termination was certainly not a redundancy. The company was ordered to pay Ms Fenech €30,000 in compensation.

The company appealed and insisted that it had resorted to a ‘last-in-first-out’ system in its restructuring. Ms Fenech’s role, it said, had been outsourced to a more experienced person. The company said the woman had failed to invoke the special legal protection afforded to employees during a change in company ownership, despite knowing that her job had transferred to another company due to a decrease in the volume of trade.

Mr Justice Anthony Ellul, presiding over the Court of Appeal, said that a redundancy required the post to be abolished.

The court said that for the ‘lastin-first-out’ argument to be valid, it needed to be shown that the employee had first been transferred to the acquiring company, who would then give the employee notice of termination. This had not happened, it observed.

The court also noted that Ms Fenech had been fired around a year after business started to drop and that no other employees had been sacked.

There was no evidence that the woman was informed of the possibility of redundancy before her employment was terminated. This put the company’s arguments in doubt.

Furthermore, correspondence presented in court showed that business was actually increasing in the months before Ms Fenech’s termination, and her responsibilities had been increased.

Other emails showed that Fenech had a strained relationship with her new superior, who had even started disciplinary proceedings against her.

In the termination letter, Ms Fenech was specifically told that her duties were to be absorbed by the current security superintendent. But her job started to be performed by an employee in another company.

The court also rejected the company’s claims that the €30,000 figure was unjustified and unexplained. The sum was more than justified, it said, and should be paid in its entirety with immediate effect.