EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE RP602/2012
-appellant MN567/2012
Against
EMPLOYER -respondent
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 N. O'Carroll-Kelly B.L.
Members: Mr J. Horan
Mr N. Dowling
heard this appeal at Dublin on 13th August 2013
Representation:
_______________
Appellant: In Person
Respondent:
Summary of Evidence
Redundancy in this case is not contested; the fact that lay-off/short-time weeks were not part of the redundancy lump sum calculation is the only issue.
The appellant commenced employment in 2000. In September 2008 the respondent sought redundancies or temporary lay-off as an alternative. All staff agreed and in January 2009 a roster of 2 weeks on and 1 week off commenced. The staff claimed social welfare for their week off. In March 2009 by agreement the roster changed to 1 week on 1 week off. This arrangement continued until the end of 2011 when business picked up. The respondent maintains that this roster was a temporary situation and at present all staff are back in full-time employment. The appellant was not on short time as she was not working less than 50% of normal working hours in any given week.
On the 1st of January 2012 all staff were increased to a 3-day week. Social welfare could be claimed for the remaining 2 days. On the 22nd of February 2012 the appellant submitted a RP9, notice to claim redundancy form to the respondent. The appellant had recently qualified as a solicitor and had informed the respondent that she wished to pursue her career as a solicitor. The respondent agreed to her request and her redundancy was processed discounting the weeks she was on temporary lay-off.
The appellant believes that her working pattern throughout the period from 2009 on was not temporary. The appellant maintains she was on short-time as she was paid monthly and only worked for 2 weeks of the month and therefore the lay-off weeks could not be discounted for the purpose of a redundancy lump sum calculation. The appellant claimed Social Welfare for the lay-off periods in which she was not working.
Determination
The Tribunal has carefully considered the evidence adduced in this case. Section 11(2) of the Redundancy Payments Act 1967 is quiet clear in defining short-time;
| ‘Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than one-half of his normal weekly remuneration, he shall for the purposes of this Part be taken to be kept on short-time for that week.’ |
Neither the appellant’s 1 week on 1 week off work pattern or the 3-day week work pattern would qualify her employment to be considered as short-time. The Tribunal find that the appeal under the Redundancy Payments Acts, 1967 to 2007 fails.
Regardless of the circumstances, submitting an RP9 notice to claim redundancy form precludes a claim for minimum notice. The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)