EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE UD1297/2011
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER (respondent 1)
EMPLOYER (respondent 2)
EMPLOYER (respondent 3)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Daly B.L.
Members: Mr D. Morrison
Ms A. Moore
heard this appeal at Letterkenny on 5th March 2013 and 10th June 2013
Representation:
_______________
Appellant: In person
Respondent:
This matter came before the Tribunal on the 10th of June 2013 by way of an appeal by the employee against the findings of the Rights Commissioner Ref: r-098014-ud-10. The Rights Commissioner found that the employee had been unfairly dismissed and should be compensated for unfair dismissal. However, an appeal was lodged by the employee (hereafter referred to as the appellant) on the grounds that the compensation recommended (€7,500.00) differed from what was awarded to his friend and co-worker.
Preliminary Issue:
The representative for the employer submitted that under the Unfair Dismissals Acts, 1977 to 2007 the Tribunal did not have jurisdiction to hear the case because of a six months break in the appellant’s service. It was argued that the appellant therefore did not have the required one year of service to pursue his claim. The representative also told he Tribunal that the correct respondent should be (respondent 3). Copies of payslips were provided to the Tribunal by both parties.
Respondent’s Case:
KB a director and brother of AB (respondent 1) gave evidence that the claimant began work for the company in 2008. Work was on board a boat harvesting mussels and was seasonal. The claimant was let go around June of 2009 and as far as KB was aware a P45 issued at that time. It was hoped that the claimant would be re-hired in September but that didn’t happen. He was re-employed in January 2010. KB did not deal with the dismissal. The boat went out of commission in May 2010 and has not gone through its certificate of compliance for financial reasons.
Claimant’s case:
The claimant gave evidence with the aid of an interpreter and confirmed that he began employment in August 2008. There was a break in his service and his boss said he was being laid-off but there would be plenty of work when the season started again. He denied ever receiving a P45 or P60. He told the Tribunal that he had been in hospital in April 2010 and received text message from AB stating what he was no longer an employee. The claimant gave evidence of his attempts to find work since his dismissal.
Determination:
The Tribunal carefully considered the evidence adduced in this case. The Tribunal finds that it does have jurisdiction to hear the claim having found that the appellant was on lay off for the period between June 2009 and January 2010. The Tribunal also considers the employer to be respondent 3, as per payslips provided by both parties.
Evidence was taken at the Tribunal hearing as to the non-licencing of the boat from May 2010 and the likelihood of a redundancy situation at that time. The Tribunal also considered the appellant’s attempts to mitigate his loss by securing new employment. Therefore, the Tribunal, in awarding compensation under the Unfair Dismissals Acts, 1977 to 2007, unanimously deems it just and equitable to vary Rights Commissioner Recommendation r-098014-ud-10 and award the appellant the sum of €4,856.00 under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)