EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD809/2012
Employee RP640/2012
against
Employer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. T. O'Sullivan
Mr. N. Dowling
heard this case in Mullingar on 30 October 2013
Representation:
_______________
Claimant(s):
No legal or trade union representation
Respondent(s):
No legal representation
The determination of the Tribunal was as follows:-
Claims were brought under unfair dismissal and redundancy legislation on behalf of a delivery-van driver in respect of employment from May 2010 to December 2011. It was alleged that the claimant had been unfairly selected for redundancy.
The respondent’s position was that he had decided to sell his van-driving franchise because he had been losing money and he could not get an extension of a bank overdraft. He wanted to secure jobs for his drivers with the new franchisee but he could not guarantee all jobs. The claimant himself tried for the franchise but was not successful. The new franchisee did not need the claimant. The claimant was told that he was the driver not to get an offer of a job as his run was going to be changed.
In sworn testimony at the Tribunal hearing the respondent acknowledged that he had still been the employer of the van drivers when no alternative route was offered to the claimant.
Under cross-examination the respondent said that he did not know if his casual driver had transferred.
In sworn testimony at the hearing the claimant said that he had been asked to act as a spokesman for the van drivers. Unionisation came up as a topic. The claimant told the Tribunal that he had no problem working but that he wanted to be treated fairly. Two new drivers were brought in. The claimant was asked to help with their training. He felt that there was work still there when he was let go.
The respondent denied ever hearing of unionisation. The claimant alleged that he had been punished because he been a spokesman and had threatened to bring in a union.
The claimant gave testimony of difficulty with efforts to mitigate his loss by seeking new employment. He stated that he was licensed to drive a car or a van but not a truck.
Determination:
The Tribunal has carefully considered the evidence adduced. The claimant says he was unfairly selected for redundancy by his employer whilst his employer was in the process of selling the franchise he held to a third party.
The employer did not demonstrate any method or manner for the selection for redundancy process. The Tribunal notes that the claimant was selected for redundancy after his longer serving brother had been made redundant and before the casual driver was let go.
The Tribunal is not satisfied that there was a fair selection for the redundancy in question and that the employer did not discharge his burden of proof in that regard.
In these circumstances and in light of the fact that the claimant may have been made redundant had he moved on to the third party employer, the Tribunal, finding that the claimant was unfairly selected for redundancy, allows the claim under the Unfair Dismissals Acts, 1977 to 2007, and deems it just and equitable to award the claimant the sum of €4,000.00 as compensation.
The appeal under the Redundancy Payments Acts, 1967 to 2007, falls as the Tribunal only found the respondent to have breached unfair dismissal legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)