RP1216/2012, MN951/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                 CASE NO.

Peter McDonnell         -   appellant                                                     RP1216/2012

                                                                                                            MN951/2012

against

John O'Hagan T/A O'Hagan Plant      -   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 O. Madden B.L.

Members:     Mr C. McHugh

                    Mr. J. Dorney

heard this appeal at Dublin on 23rd January 2014

Representation:

Appellant:       Mr. Eamonn Dornan B.L. instructed by Burns Kelly Corrigan Solicitors, 248                     

Harolds Cross Road, Harolds Cross, Dublin 6W

Respondent:    Mr. Aaron Shearer B.L. instructed by Brian Berrills & Co, Solicitors,

                        5 Francis St, Dundalk, Louth

Preliminary Issue:

The appellant was employed with the respondent as a general operative from February 1998. The appellant’s Workplace Relations Complaint Form stated a termination date of 22^nd July 2011 and was received by the Tribunal on 2^nd November 2012. It was the respondent’s case that the appeal was lodged outside the stipulated 52 week time limit imposed by the Acts. It was the appellant’s case that his accountant had completed this form on his behalf and that the actual date of cessation was in May 2012.

The Tribunal heard evidence from the appellant and the General Manager in relation to this issue. It was common case between the parties that the appellant was provided with a P45 in July 2011 when he reached the retirement age of 66 and he began to receive the State pension from that time. The General Manager stated that the appellant approached him six weeks prior to his retirement date for the completion of the relevant paperwork. It was the respondent’s case that the appellant indicated that he would like to continue to carry out some work but at a level that would not impact his pension. However, it was the appellant’s evidence that he was told in July 2011 that there was work for him for as long as he wished. The appellant after a period of two weeks holidays continued to carry out the same work as before.

The General Manager said he explained to the appellant that this work was being provided to him on a self-employed basis and that the company would not be deducting tax and social insurance contributions and that these were matters for the appellant to put in place. The appellant’s evidence was that he did not register as a self-employed contractor but was paid in cash and he considered the respondent to be looking after his tax affairs. The appellant was paid the same amount as before July 2011. In reply to questions from the Tribunal, the General Manager stated that the payments to the appellant were taken from his own personal takings from the company.

There was a dispute between the parties as to when the appellant was subsequently informed that work levels were decreasing and that his work was coming to an end. The appellant stated that he was informed of this in May 2012 without being provided with notice or pay in lieu of notice. The General Manager believed this discussion was January 2012 whereby he informed the appellant that work levels were decreasing some three weeks before the work came to an end.  

A letter dated 14^th September 2012 written on behalf of the appellant was opened to the Tribunal. The letter referred to a termination date of 22^nd July 2011 and sought a redundancy payment.

Determination:

Based on all of the evidence before the Tribunal, in particular the P45, the letter dated 14^th September 2012 and the date of employment as set out in the Workplace Relations Complaint Form, the appellant’s employment ended on the 22^nd July 2011. In the absence of any reasonable cause preventing the appellant from lodging the appeal under the Acts, the Tribunal is not satisfied to extend the time limit for the appeal for a further twelve months. Accordingly, the Tribunal must dismiss the appeal under the Redundancy Payments Acts, 1967 to 2007, for want of jurisdiction.

The Tribunal also dismisses the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. Having found the operative date of termination to be 22^nd July 2011 the Tribunal is satisfied from the evidence that the appellant was aware well in advance of that date that he was due to retire at that time.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)