UD1334/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Lucey

Members:     Mr D. Hegarty

                     Mr O. Wills

heard these claims at Cork on 25 October 2013

Representation:

Claimants:

Respondent:

The determination of the Tribunal was as follows:

The respondent company, which imports Polish foodstuffs and other goods, operates a series of seven or eight shops around Munster as well as supplying to other shops which operate through franchising. The claimants were employed from August 2010 in the respondent’s Kanturk store (the store), they were the only employees in the store and it was common case that no issues arose with regard to their employment.

The directors of the respondent found management of the store difficult on account of its distance from their head office and from some time in 2011 decided to attempt to sell the store by converting it to a franchise operation. To this end the respondent entered into negotiations with the second named claimant about her becoming the franchisee of the store. It was common case that the first named claimant was not party to these negotiations.

The negotiations with the second named claimant began in the late summer of 2011 and continued through the autumn. The store closed over the Christmas period, during this time a stock-take was undertaken and on 3 January 2012 the claimants were issued with P45’s showing a cessation date of 31 December 2011. It was common case that there was no agreement in writing at this or indeed at any stage for this to happen. The respondent’s position was that they decided to close the store because they believed they had an agreement with the second named claimant for her to take over the store as franchisee and that the claimants’ terminations were by reason of redundancy.

On or around 21 January the second named claimant confirmed to the directors of the respondent that she would not be taking on the franchise and on or around 25 January 2012 the store reopened with the mothers of the two directors of the respondent working in the store. The respondent’s position was that they had been unable to contact the claimants in order to seek their return to work. Subsequently a franchisee was found and this person took over the store in May 2012.

Determination:

The Tribunal cannot accept that the reason for the issuing of the P45’s was because the respondent felt there was an agreement for the second named claimant to become the franchisee. There is no credibility in this position without any written agreement in place. The Tribunal does not accept that attempts were made to contact the claimants prior to the reopening of the store; rather it is satisfied that the directors became frustrated at the prolonged negotiations with the second named claimant and lost patience with her. The first named claimant was a wholly innocent victim in all this. The reopening of the store by the respondent with the directors’ mothers working in the store some four weeks after it closed for Christmas shows that this was not a redundancy situation.    For all these reasons the Tribunal is satisfied that both claimants were unfairly dismissed in the absence of any or fair procedure on 31 December 2011. The Tribunal awards €3,596-00 to the first named claimant under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal considers that the second named claimant was not without fault in this matter and measures her award under the Unfair Dismissals Acts at €9,000-00.

Both claimants were dismissed without notice and, loss having been established, are both awarded one week’s pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. In the case of the first named claimant this amounts to €274-00 and in the case of the second named claimant this amounts to €271-00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)