RP1180/2012, WT391/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

Dario Pajic                                                                                                                 RP1180/2012

                                                                                                                                    WT391/2012

Against

1. P&J Security Services Limited

2. KRSC Limited

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr. J. Reid

                    Ms. N. Greene

heard this appeal at Dublin on 23rd October 2013 and 26th February 2014

Representation:

Appellant:

             Mr Hugh Hegarty, SIPTU, Misc, Liberty Hall, Dublin 1

Respondent:

             Mr Gerry McGreevy, Brady McGreevy Walsh, Solicitors,

             Leeson Court, 86/88 Lower Leeson Street, Dublin 2.

            On behalf of P&J Security Services Ltd.

            There was no appearance by or on behalf of KRSC Limited.

Background

There were two respondents in this case and both were Security Contractors. The appellant was employed as a security guard by the 2^nd named respondent from 1^st April 2009 until 7^th September 2012 and was based in a Sports Shop. He then became an employee of the 1^st named respondent from 8^th September 2012 until the Sports Shop closed down on 30^th September 2012.

1^st named respondent’s case:

The 2^nd named respondent had a security contract with the Sports Shop. However this respondent ceased trading on or about 7^th September 2012. The 1^st named respondent then took over the contract on a temporary basis until 30^th September 2012 at which time the contract ceased. There was never a transfer of undertakings and the contract ended when the Sports Shop closed down.

2^nd named respondent’s case:

There was no appearance by or on behalf of the 2^nd named respondent.

Appellant’s case:

At the outset the appellant withdrew his appeal under the Organisation of Working Time Act, 1997.

The appellant commenced employment as a security guard with the 2^nd named respondent on 1^st April 2009 and was based in a particular Sports Shop until that shop closed down on 30^th September 2012. He had been told on 7^th September 2012 that the 1^st named respondent was taking over the contract and the appellant continued to work until the Shop closed down on 30^th September 2012.

At the time of termination of employment the appellant was earning €374.20 per week. However he had been working more hours and was paid €420.00 per week up to the end of November 2011. The appellant never agreed to this reduction in pay or hours.

Determination:

Having carefully considered the evidence adduced at the hearing the Tribunal is satisfied that the appellant was made redundant by the 2^nd named respondent on 7^th September 2012. There was no transfer of undertakings agreement and the 1^st named respondent cannot in fairness be held liable for a redundancy lump sum payment to the appellant.

The appellant’s pay was reduced without his consent less than 12 months prior to his redundancy and therefore the appropriate rate of pay in calculating his entitlement is €420.00 per week.

The Tribunal finds that the 2^nd named respondent is liable to pay the appellant a redundancy lump sum. Accordingly the Tribunal awards the appellant a lump sum redundancy payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria.

This award is made subject to the claimant having been in insurable employment, during the relevant period, in accordance with the Social Welfare Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)