RP860/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

EMPLOYEE   – appellant                                                                             RP860/2012

Against

EMPLOYER   – respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms N.  O'Carroll-Kelly BL

Members:        Mr D.  Winston

Mr J.  Maher

heard this appeal at Dublin on 11th September 2013

Representation:

_______________

Appellant(s):              

Respondent(s):           

The decision of the Tribunal was as follows:-

Summary of Evidence:

The appellant was employed by the respondent company as a part-time shop assistant from August 2006.  The date of termination was in dispute.  In November 2011 the respondent leased the shop.  The new tenant did not wish to retain the employees as he was going to work most of the hours himself and so the respondent made all the roles redundant.  All those eligible for a redundancy payment were paid.  The respondent did not make a payment to the appellant as he had travelled to the US during the summer of 2011 on a J1 student visa for 13 weeks from 13^th June – 9^th September 2011.  The appellant resumed working at the shop on his return.

The respondent’s director gave evidence that he believed that the appellant had left his employment in June 2011 and instructed his bookkeeper to issue the appellant’s P45.  There was no conversation between the appellant and the director about his departure.  The appellant reported to the shop manager who was also his mother.  The bookkeeper gave evidence that she issued the appellant’s P45 in June 2011, after the appellant’s departure, and brought it to the shop.  She gave it to the shop assistant present to be left behind the counter.  The appellant contended that he did not receive this P45.  The appellant’s mother also disputed receiving this P45 or phoning the bookkeeper to request that it not be issued.  She first heard of the P45 in November 2011 when she was informed that the appellant would not be receiving a redundancy payment.  The bookkeeper requested a new revenue number for the appellant when he resumed working at the shop in September 2011.

The appellant’s mother was employed as the shop manager.  The respondent’s director gave evidence that in 2010 she had informed him on two occasions when employees were taking extended leave of five weeks.  The appellant was one of these employees.  He asked her if she could cover the time and she confirmed that she could.  The manager did not speak to the director in 2011 about the appellant’s leave.  He heard he was going to work in the US and presumed he had left.  There was no discussion in September 2011 about his return.  The manager gave evidence that she had agreed to the appellant’s time off and had covered his shifts as required.  She did not believe that she had to report this to the director.  She did not recall asking for his permission on previous occasions.  She entered three of the appellant’s weeks off as holidays.  She was the only fulltime staff member and organised the part-time employees’ hours. 

Determination:

The respondent agreed to the amending of the respondent name to the correct title.

Having considered all the evidence and documents submitted the Tribunal is satisfied that there was no break in the appellant’s service.  There was a change in employee number and the Tribunal is happy that the respondent company probably issued a P45.  However, the Tribunal is not satisfied that this was given to the appellant or his mother.  In a situation where an employment is ending there must be clear and unambiguous evidence.  There is not in this case and so the Tribunal is giving the benefit of the doubt to the appellant. 

Accordingly, the Tribunal finds that the appellant is entitled to a lump sum redundancy payment under the Redundancy Payments Acts, 1967 to 2007, based on the following information:

Date of Birth:              14^th February 1990

Commencement Date:            14^th August 2006

Termination Date:       4th December 2011

Gross Weekly Pay:      €136.21

This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)