EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee – appellant 1 RP433/2012
Employee – appellant 2 RP431/2012
Against
Employer - respondent
Under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr M. McGarry
heard this appeal at Castlebar on 14 March 2013 and 9 July 2013
Representation:
Appellant(s) : Ms Martina Weir, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Ms Kathleen Funchion, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent(s) : Mr. Frank Dorrian, Pa Dorrian & Co, Solicitors,
St Anne's Court, High Road, Letterkenny, Co Donegal
The decision of the Tribunal was as follows:-
Summary and Background
The respondent company provides security on a contract basis with contracts at various sites nationwide. In January 2009 following a takeover of a security business a number of employees transferred to the employment of the respondent.
The two named appellants gave evidence of commencement dates and dates employment ended with the respondent.
A director of the respondent company outlined to the Tribunal that due to the closure and demolition of the site where the appellants were based security was no longer required and the security contract ceased. He had no option but offer alternative locations but had no contracts in the Mayo region at that time. Alternative temporary positions at other locations were offered to the appellants in the Donegal region but it was intended that when contracts became available in the Mayo region the employees could return to the Mayo area. He arranged a meeting during December 2011 to discuss alternative employment but none of the employees attended. The meeting was arranged to coincide with training. He could not recall any discussion with AM an employee who telephoned him to discuss accommodation allowance at the proposed temporary locations. His recollection of that period was employees seeking redundancy at a time when he had work elsewhere for each employee. The witness denied ever altering employment contracts and denied refusing to meet with union representatives.
Determination
The Tribunal carefully considered the evidence adduced at the hearing. As a result of a transfer of the business the appellants were employed by the respondent at the time they were made redundant on the 22 December 2011. Thus, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 the appellants have continuity of service from the 1 August 2007 for the first named appellant and 2 May 2005 for the second named appellant until the date of dismissal.
Although contracts of employment included a mobility clause the Tribunal find it was unreasonable to expect employees to locate to the proposed alternative location due to the distance and travel which would have to be undertaken by the appellants. The respondent failed to engage in any meaningful way with the appellants or their representatives.
The Tribunal finds that each of the appellants were dismissed by reason of redundancy.
The Tribunal awards the appellants lump sum payments under the Redundancy Payments Acts 1967 to 2007 based on the following information:
Appellant 1
Date of Birth: 5 February 1977
Date of Commencement: 1 August 2007
Date of Termination: 22 December 2011
Weekly Gross Pay: €320.00
Appellant 2
Date of Birth: 11 March 1941
Date of Commencement: 02 May 2005
Date of Termination: 22 December 2011
Weekly Gross Pay: €441.00
This award is made subject to the appellants having been in insurable employment under the Social Welfare Acts during the relevant period. Please note that a weekly ceiling of €600 applies to all awards made from the Social Insurance fund.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)