rp357_live13

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                                                                             CASE NO.

Agnieszka Gancarczyk           -appellant

                                                                                                                                                                                       RP357/2013

against

Dermot Dunleavy Practising under the Style and Title of Dermot S. Dunleavy & Son Solicitors    -respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Browne

                     Ms S. Kelly

heard this appeal at Wexford on 8th October 2014

Representation:

Appellant:       In person

Respondent:    In person

Background:

The appellant commenced work with the respondent on 28^th July 2008. It was the respondent’s evidence that he took her on as a conveyancing clerk but the appellant disputed this and said that conveyancing was only part of her duties. The conveyancing work in the practice reduced drastically as a result of the recession and in or around the 11^th November 2011 the appellant, as well as other employees were put on short-time. The appellant was now earning €154.00 per week as opposed to the €385 per week she had been earning up to then.

The appellant continued to work on the short-time hours until the termination of her employment on 22^nd February 2013. Prior to the termination the appellant served a RP9 on the respondent on 8^th February 2013. The respondent did not serve a counter notice on the appellant by offering her not less than thirteen weeks unbroken employment as he understood that it was the appellant’s wish to terminate her employment as she had other plans and that as far as he was concerned they had parted on good terms, they had a good working relationship, the appellant was invited to family gatherings and she had been given a going away party.

The respondent’s evidence was that the short-time suited the appellant as she was pursuing a course of study. This was disputed by the appellant who said she was only studying because her working hours had reduced and that as far as she was concerned this was a redundancy situation.

Despite submitting a claim for redundancy the appellant in her written submission to the Tribunal stated that there was no need for the respondent to make her redundant.

Determination:

Having considered the evidence of the parties adduced at the hearing, the Tribunal finds that the respondent had a need to effect cost-cutting measures, such as putting staff on short-time.

The Tribunal accepts the evidence of the respondent that the short-time suited the appellant. This finding is supported by the fact that the appellant did not demur to the respondent, continued working the shorter week for a period of in or about one year and four months and she adduced no evidence that she had been seeking alternative employment during that period. Neither did she seek redundancy during that period. Accordingly the Tribunal finds that her conduct amounted to an acceptance of the situation such that it was a variation of her contract of employment.

The Tribunal finds that the assertion of the appellant in her written submission that there was no need to make her redundant is at variance with her claim but in circumstances where the respondent failed to serve the statutory counter notice and where there was no evidence before the Tribunal as to whether the respondent was in a position to provide employment for the requisite period to the appellant under the varied contract the Tribunal determines that a redundancy situation existed.

The Tribunal determines that the redundancy lump sum is to be calculated on the basis of the salary in accordance with the varied contract.

Accordingly, the claim under the Redundancy Payments Acts, 1967 to 2007 succeeds and the appellant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:

Date of Birth:                                                             

Date of Commencement:        28^th July 2008

Date of Termination:               22^nd February 2013

Gross Weekly Pay:                  €154.00

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)