EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
RP556/2012
Employee
against
Employer (Correspondence address given at hearing)
and
Employer (Address registered at Companies Registration Office)
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony BL
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this appeal in Cork on 18 October 2013
Representation:
_______________
Appellant(s):
No legal or trade union representation
Respondent(s):
No legal representation
The decision of the Tribunal was as follows:-
Summary of Evidence
The appellant commenced working in the original business on 14 December 2008, delivering goods to Co. A. In early 2011, a complaint was made against the appellant by Co. A and he was thereafter transferred to making deliveries to Co. B. The complaint against the appellant was never investigated and the appellant put forward a reasonable explanation at the Tribunal hearing for the incident complained of. In July 2011 the business split in two and the respondent was thereafter responsible for deliveries to Co. B.
Work in Co. B was seasonal, with lay-offs over the winter period. The appellant was put on lay-off in early November 2011. When asked if the seasonal nature of the work had been explained to the appellant, the director of the respondent acknowledged that his explanation “was probably hap-hazard” and felt that the appellant was well aware of the seasonal nature of the work in Co. B from the other Polish employees working for the respondent. The appellant believed that his employment had ended. The respondent had not given the appellant a document containing his terms and conditions of employment.
In early in 2012 the appellant contacted the respondent at least twice seeking work and was told that there was no work available at the time. The appellant denied the director’s assertion that he had told him to call him back in a fortnight (about work). When a friend of the appellant asked about redundancy the director told him he was not entitled to it as he was seasonal worker. When other workers had been taken back by the respondent, the appellant wrote on 20 February 2012 seeking a redundancy payment. The director’s position was that he had never received that letter as it had been posted to the Co. A address, although he had received another letter (about the interpreter for the Tribunal hearing) posted later to the same address. The respondent had around 13 drivers and some employees leave every year. The appellant lodged his appeal for a redundancy payment with the Tribunal on 20 April 2012.
The appellant’s gross weekly pay was assessed (from the documentation presented at the Tribunal hearing) at €501.00.
Determination:
An employer cannot rely on European drivers, with different abilities in understanding the English language, knowing each other and keeping each other fully informed as to the nature of their employment, in particular as to whether it is seasonal and the implications thereof. Having considered the sworn evidence of the parties and the contents of the letter of 8 November 2011 signed by the respondent’s payroll administrator, stating that the claimant had been let go as there was no work for him, the Tribunal is satisfied that the appellant was dismissed by the respondent by reason of redundancy. Accordingly, the appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following details:
Date of birth: 23 May 1967
Date of commencement: 14 December 2008
Date of termination: 4 November 2011
Gross weekly pay: €501.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)