EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE, RP1212/2012
MN947/2012
WT402/2012
against
EMPLOYER
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. A. O'Mara
Mr. G. Whyte
heard this case in Dublin on 22 August 2013
Representation:
_______________
Claimant(s):
Respondent(s):
No legal representation
The decision of the Tribunal was as follows:-
The claimant claimed that his employment, which commenced on 12 July 2006, ended, without his due minimum notice, by reason of redundancy on 10 June 2012. His gross weekly pay was €513.00.
A claim was also made on behalf of the claimant under the Organisation of Working Time Act, 1997, in respect of holidays outstanding at the time of termination of employment with the respondent.
The position of the liquidator and of a director of the company from before the liquidation was that the claimant had been on a three-day week prior to the termination of his employment.
Determination:
The Tribunal listened to the evidence adduced. The claimant indicated that in or around November 2011 he and his colleagues were told that, in order that they continue in the workplace, they would have to accept a reduction in their working week from five days (or forty-five hours) to three days.
The claimant understood that the hours were being reduced by reason of the downturn in the economy but believed that there would eventually be a turnaround in business and that he would be restored to his full forty-five hours.
In the company letter of the 12th of November 2011 the company did positively assert that the part-time hours would last “at least twelve months” and the only reasonable interpretation of this letter is that there was a belief on the part of the employer that the full-time hours would be restored eventually.
The Tribunal cannot be sure that the claimant constantly and actively sought assurances that the full-time work would be restored. However, the Tribunal cannot find that the claimant did not make enquiries in this regard and finds that the likelihood was that the claimant did make enquiries as to whether things were improving and whether there was a reasonable chance of a move towards full-time employment.
The Tribunal finds that the claimant accepted the reduction in status to that of part-time on the firm understanding that, in the event of an expected change in company fortunes, he would become full-time again.
The company knew or ought to have known that the claimant held this belief and that he had, from time to time, raised this matter with the directors.
In calculating redundancy the claimant was entitled to have his redundancy figure calculated on the full-time figure.
Under the Redundancy Payments Acts, 1967 to 2007, the Tribunal finds that the claimant is entitled to a redundancy lump sum based on the following details:
Date of birth: 11 June 1979
Date of commencement: 12 July 2006
Date of termination: 10 June 2012
Gross weekly pay: €513.00
This award is made subject to the claimant having been in insurable employment under the Social Welfare Acts during the relevant period.
Allowing the claim lodged under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, the Tribunal awards the claimant the sum of €2,052.00 (this amount being equivalent to four weeks’ gross pay at €513.00 per week).
In addition, the Tribunal awards the claimant the sum of €1,026.00 (this amount being equivalent to two weeks’ holidays at a gross pay of €513.00 per week) under the Organisation of Working Time Act, 1997, in respect of holidays outstanding at the time of termination of his employment with the respondent.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)