EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE RP1570/2011
-claimant
against
EMPLOYER -respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Kearney
Members: Mr. W. O'Carroll
Ms H. Henry
heard this appeal at Tullamore on 4th December 2012
Representation:
Appellant: In person
Respondent: In person
Background:
The respondent is a grocery store. The claimant worked there as a shop assistant. The claimant contends that she commenced with the respondent in November 2006 as a full time employee. During the last few years of economic downturn her hours dropped to 30 hours in 2010. From January 2011 she was put on short time without prior notice. On the first week of January she was on holiday leave and was due to return on Sunday 09th January. On Saturday 08th January she received a call from her manager to tell her that she need not come into work on Sunday 09th and that from Monday 10th she would be working only two days per week. She met her employer and told her employer that two days per week did not suit her and wanted her normal hours back. She was told that the situation was only temporary and that by March or April she (her employer) expected business to get better and she would have more work hours. However the situation got worse in that in February she was only called into work on one day per week and sometimes she go no hours at all. On 08th April 2011 the claimant handed her employer a form RP9 to claim for redundancy. She met her employer a week later and her employer told her that she had no answer for her but would contact her in a few days. Her employer did not meet her. She sent her employer a text message but did not get a reply.
After a month she obtained advice. She sent her employer a fresh notice on 15th May 2011 and her employer ignored this as well. After seven days she sent her employer a form 77 requesting redundancy payment and this was also ignored.
The respondent contends that the claimant did work for them as stated. However after a period working with them her circumstances changed and she was unable to work full days as she had to collect her child from school. The business got quieter and quieter and they had to try and facilitate all members of staff with some hours of work. Because of the claimant’s difficulty with afternoon work it was not always possible to accommodate her and she received less hours. The claimant was not happy with this and informed them that she wanted to leave and claim her redundancy payment. She gave them notice of her intention to finish work.
Determination:
The Tribunal heard evidence from both parties in this case. The Tribunal heard from the claimant that her hours were reduced and that this was not contradicted by the respondent, albeit the reasons for this were somewhat in contention.
The facts were that her hours were reduced and this qualified her to be deemed to be on short-time. Section 12 of the Redundancy Payments Act 1967 applies:
| Right to redundancy payment by reason of lay-off or short-time. | 12. —(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. |
Also that no counter notice was given pursuant to Section 13 of the Act:
| Right of employer to give counter-notice. | 13. —(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week. |
Accordingly the claimant is entitled to a redundancy payment lump sum payment under the Redundancy Payments Acts 1967 to 2007, based on the following information:
Date of Birth: 29th May 1978
Date of commencement of employment: 24th November 2006
Date of end of employment: 20th May 2011
Gross weekly pay: €330.00
PPS no. 4378455 O
The Tribunal notes that at the time of this employment and for the purposes of company records that at all times the claimant was employed under her maiden name of EMPLOYEE and in 2007 she changed her passport to her married surname of EMPLOYEE.
This award is subject to the claimant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Act 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)