RP2396/2011, MN1902/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

EMPLOYEE                                                                                                  RP2396/2011         MN1902/2011

against

EMPLOYER 

   Under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr J.  Smith

Members:     Mr D.  Morrison

                     Ms R.  Kerrigan

heard this appeal at Letterkenny on 8th April 2013

Representation:

_______________

Appellant:             

Respondent:        In person

The decision of the Tribunal was as follows:-

Appellant’s case:

The appellant claimed that his employment, which commenced on 1 July 1997, ended by reason of redundancy in April 2011 when he received his P45.  He was out sick, due to sleep apnea for a period of time in 2009. The matter was resolved but his employer JF told him to stay on the sick as there wasn’t much work available. He enjoyed working for the employer, he never asked to resign and had approached JF on various sites asking about work. After seeking advice he served an RP77 on  his employer, again to JF, in August 2011 but received no reply.

It was his evidence that he never spoke with AF, J,s wife. He didn’t hand in sick certificates, maybe one initially. He never received or was asked for a fit to return to work certificate, all his dealing were with JF who he considered to be his employer.  

Respondent’s case:

DM wages clerk for the respondent gave evidence of not being aware that the appellant was fit to return to work. She stated that there was plenty of work as the appellant was a foreman so it would have been no problem to take him back. She received a telephone call from the claimant on 15^th April 2011 saying he was after getting a letter from Social Welfare, he was being taken off the sick. He was still unfit for work, so needed a P45. The P45 was prepared and the appellant collected it on 28^th. DM denied ever receiving the RP77 form.

AF gave evidence of being a joint owner of the business. She did the paperwork, looked after holidays and things like that. She said her husband looked after things on site and the ordering of materials. The appellant came to her house, he had a blank RP50, told her the business would get the rebate. She didn’t fill it in because it would have been illegal. He was always on the books.

He then wanted his P45 so he could sign on the dole, he said that he was still unfit to work, had headaches and couldn’t bend down. The business did not replace the appellant but there had been plenty of work and subcontractors were taken on.  

Determination:

Having considered the conflicting evidence from the appellant and a joint owner of the of the company the Tribunal prefers the evidence of the company representative and accepts that work would have been offered to the appellant if a fitness to return to work certificate had been received.  

Accordingly, the appeal under the Redundancy Payments Acts, 1967 to 2007, and the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails. 

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)