EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE, RP1026/2012
against
EMPLOYER
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. J. McGovern BL
Members: Mr. T. O'Grady
Mr. A. Butler
heard this case in Dublin on 13 August 2013
Representation:
_______________
Appellant(s):
Respondent(s):
No legal representation
The decision of the Tribunal was as follows:-
The appellant claimed that his employment, with a construction industry employment agency, which commenced on 25 October 2000, ended by reason of redundancy on 13 July 2012. His gross weekly pay was €700.00.
The respondent’s position at the hearing was that it disputed the appellant’s entitlement to a redundancy lump sum on the grounds that he had not been on lay-off when a RP9 form had been served on the respondent but, rather, that he had been unavailable due to the illness of his wife.
The Tribunal was furnished with a copy of a letter dated 29 August 2012 from a respondent labour manager (CT) to the appellant acknowledging receipt of a RP9 form but stating that the appellant was not then on lay-off but, rather, had requested time to care for his wife while she recovered from medical treatment. The letter pointed out that, for the same reason, the appellant had been unable to accept any assignments offered to him (and verifiable from company records) during the previous five weeks and that it had been left to the appellant to contact the respondent when he would be ready to resume work. Accordingly, the respondent did not accept that there could be a valid redundancy claim in respect of the appellant due to the fact that he had not been put on lay-off and the respondent requested that the appellant inform it as to whether or not he was available for work. Furthermore, BK on behalf of the respondent, believes the appellant’s job is still available and open to him.
The Tribunal was also furnished with a copy of a letter dated 30 August 2012 from the appellant’s trade union official (PH) responding to this letter stating that the appellant had only been off caring for his wife for only one week. It was disputed that the respondent had contacted the appellant several times only to discover him to be unavailable. It was the appellant’s position that he was only contacted once with a job offer which would have involved him travelling from Dundalk to Dublin for 4 hours’ work. In the circumstances the appellant maintained that he was entitled to a redundancy lump sum.
Determination:
Under the Redundancy Payments Acts, 1967 to 2007, the Tribunal unanimously finds that the appeal fails in that it finds that the appellant is not entitled to a redundancy lump sum.
There was a direct conflict of evidence regarding the duration of the appellant’s absence for his wife’s illness and his consequent unavailability. The Tribunal is left relying on the correspondence and is not satisfied that the appellant and/or his representative fully addressed the situation. The respondent’s 29 August 2012 letter merited a very comprehensive response rather than an assertion that the matter would be referred to this Tribunal should a redundancy payment not be forthcoming. The appellant reaction to the respondent’s letter was not good enough given that the respondent was challenging the alleged entitlement to redundancy. The Tribunal has to rely on the correspondence where there is such a conflict of evidence.
In all of the circumstances the Tribunal accepts that the appellant had not been on lay-off and that his position was not redundant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)