EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1997/2011, RP2574/2011
MN2029/2011
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
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: Mr J. Revington S.C.
Members: Mr. L. Tobin
Mr M. O'Reilly
heard this claim at Dublin on 19th April and 25th September 2013
Representation:
Claimant:
Respondent :
The secretariat of the Tribunal recorded the receipt of the claimant’s T1-A form on 13 October 2011. Among the details on that signed form was his date of termination of employment.
This was stated as 27 October 2011.
The determination of the Tribunal was as follows:
Claimant’s Case
The claimant commenced employment in with this printing enterprise in August 2006. He worked fulltime as a studio operator which entailed among other tasks undertaking original graphic work which formed an important element of his work. More than fifty percent of his time was spent on graphic design work. By September 2011 he was still performing those roles and at times during that year he had been working overtime to cope with the volume of work. While he had some knowledge of the difficult financial affairs of the respondent the claimant did not notice any reduction in his workload. On the contrary he was “snowed under” with work. However, he stopped seeking a commission from the respondent after several futile attempts to secure that payment.
According to the claimant graphic design work carried a creative element to it and encompassed a wide range of work including images and text.
During a meeting with the managing director on 12 September 2001 the claimant was informed that the demand for his work had slumped. That manager added that the claimant could take on typesetting work but at a reduced hourly rate. The claimant accepted that the respondent’s formal written summary account of that meeting was accurate. That account read in part If you do notaccept the typesetting role, then your employment with the company will end. He was faced with either accepting a role of typesetter at a significantly reduced rate of pay or his employment ceasing with company. In a further development the managing director suggested the claimant could opt for a statutory redundancy should the typesetter role be declined. The claimant opted to accept neither of those proposals.
Another meeting between the claimant and the owner of the business took place on 28 September. The claimant told the Tribunal that following that meeting on 28 September the managing director came into his office and effectively told him to stop working and go as he was being made redundant. He did as instructed and returned the following month to collect his belongings. The claimant did not accept an offered redundancy payment from the respondent.
Respondent’s Case
The current general manager of this printing firm said she dealt with commission payments. In 2011 the claimant never applied for such a payment nor was she told not to issue such a payment to him commission was paid on graphic artwork and since there was none produced that year from the claimant then no payments were due. Her definition of graphic design work differed from the claimant’s in that she regarded such work as having an original and creative element to it. However, this witness accepted the claimant’s account of his work.
This manager had no input into the termination of the claimant’s employment nor was she privy to the financial affairs of the company at the time. She also had no knowledge of a document purporting to relate to work processed through the studio for June, July, and August 2011.
The owner of this enterprise dealt with the claimant’s termination of employment. This witness told the Tribunal that the respondent was financially struggling mainly due to a change in technology and a fall in demand for its services. As a consequence this witness and employees, including the claimant, were subjected to reductions in their remuneration. The owner stated that typesetting formed ninety percent of the claimant’s work. The graphic design work undertaken by the claimant “never really started” and was not viable. He wanted to make the job of graphic designer redundant. In September 2011 further cost measures were needed and in that context the witness approached the claimant.
Since the claimant did not accept a proposed change to his status and income with the respondent the witness approached him on 28 September 2011 and told him to stop working and vacate the premises. This was not done in a threating or abusive way. Earlier the respondent had prepared and presented the claimant with a financial package regarding that departure but that package had been rejected by him. The owner did not want the claimant on the premises during his notice period.
Determination
A main difference between redundancy and dismissal is where the emphasis lies-whether it is on the job or the jobholder. When the job that the employee was performing becomes redundant and the person doing it loses their position and that position is not replaced, then this is a redundancy situation. A dismissal is when an employee loses their employment but their job remains in place.
In this case the latter occurred in that the jobs undertaken by the claimant largely remained following his termination of employment. The claimant’s former position was replaced following his cessation. This scenario cannot be defined as a redundancy. Since the claimant did not resign he was therefore dismissed. This dismissal in the circumstances was unfair. The Tribunal therefore allows the claim under the Unfair Dismissals Acts, 1977 to 2007 and awards the claimant €6,500.00 as compensation under those Acts.
It follows that the appeal under the Redundancy Payments Acts, 1967 to 2007 must fall.
The Tribunal finds in effect that the claimant was given notice of his termination of employment on 12 September 2011. His date of dismissal is therefore 9 October 2011. That leaves his outstanding notice at less than two weeks. In allowing the appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 the Tribunal awards the appellant €1211.47 as compensation for that outstanding notice.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)