EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE RP830/2012 MN698/2012
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: Ms P. McGrath B.L.
Members: Mr J. Browne
Mr A. Butler
heard this appeal at Carlow on 27th September 2013
Representation:
_______________
Appellant:
Respondent:
The decision of the Tribunal was as follows:-
Determination:
The Tribunal has carefully considered the evidence adduced. The claim is one of redundancy brought by the claimant after nearly three years of employment with the respondent. The claimant commenced his employment with the respondent employer on the 28th January 2008 and worked up a technical skill as a general operative in this specialised workplace.
It is common case that for the first two years of employment 2008 and 2009 business was good and that the claimant worked full time. In evidence, the employer stated that whilst the work was always dependent on the next phone call in, and had an element of seasonality, he could afford to retain the claimant full time in 2008 and 2009 as business was good.
However, in early 2010 the severe downturn was having a knock on effect and the employer opted to put the claimant on short-time for the foreseeable future which, once notified, entitled the claimant to a certain level of social welfare to make up the difference.
The employer and employee fell into a pattern of employment which involved the employee being on standby week to week, never really knowing how much work would be available to him. That said, for the weeks that he did work the employee was earning, on average, the same amount per week as he had been in the proceeding two years of 2008 and 2009. The Tribunal found the P60’s and P45 support that fact.
The Tribunal is faced with a clear conflict of evidence as to how this employment came to an end. The claimant believes he was simply terminated after a long period of non-communication and very little work in and around September, October and November 2011.
The respondent understands that the claimant sought a P45 in circumstances where he wanted to get his full social welfare entitlements. The Tribunal notes that this information purportedly came to the respondent 3rd hand from an unknown person in the social welfare office and the employer never discussed the implications and finality of the P45 with their valued employee.
There was no communication between the parties in the months leading up to the termination of this employment. Reasons why this was the case has not been satisfactorily explained to the Tribunal.
The Tribunal finds that the claimant is entitled to a redundancy payment in circumstances where his job had disappeared and that is evidenced by the fact that there was only at most three weeks of work in the last sixteen weeks of employment. The Tribunal finds that 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: 27 May 1979
Date of Commencement: 28 January 2008
Period of Non-Reckonable Service: 18 July 2011- 20 Aug 2011
29 Aug 2011 – 15 Oct 2011
Date of Termination: 04 November 2011
Gross Weekly Pay: € 225.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
The Tribunal awards the appellant €450.00 being the equivalent to two weeks’ pay in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)