EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Karolina Szczudlo (appellant) RP763/2013
Against
Golden Years Care Limited T/A Caremark City North
(respondent)
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr F. Moloney
Mr J. Maher
heard this appeal at Dublin on 17th October 2014
Representation:
_______________
Appellant(s) : In person
Respondent(s) : Ian Meegan, Recruitment Works Ltd., 65 Rock Road, Blackrock, Co. Dublin
The decision of the Tribunal was as follows:
Summary of evidence
The appellant worked as a care worker for the respondent company. One of the Director’s (TD) indicated that his wife (MD), who was also a Director and was involved in the running of the business, was unable to attend the hearing due to illness. TD was not involved in the day to day running of the business. The Care Manager (AB), for the respondent company told the Tribunal that during the last year of the appellant’s employment she worked in the home of one particular lady who passed away on 3rd January, 2013.
The respondent operated the business from two offices, one north side and one south side. As there was no Care Manager in the northside office during February, 2013 AB was moved from the south side office to carry out duties. AB gave evidence as to her contact with the appellant and stated that the appellant accepted work in Clontarf in March, 2013. The appellant was due to commence on 27th March, 2013 but then subsequently refused the offer by text on the day she was due to start. AB was not in a position to indicate what other work MD offered the appellant.
Under cross-examination, AB indicated that she was not aware that the Clontarf work was to be for one month only, as the appellant did not inform the respondent of this information that she had obtained. The respondent still has that same client in Clontarf. The letter of 7th January, 2013 to the appellant was not a letter of dismissal but was given to the appellant for social welfare purposes.
Giving evidence, the appellant explained that MD mentioned work in Rathfarnham but she was not made aware of the hours of work. MD contacted her a number of times by phone but nothing definite was offered. The appellant served the RP77 in August, 2013.
The reason the appellant refused Clontarf was because she contacted the relevant family as she had worked with the client on a previous occasion and was told by a member of the family that the work would only be for one month. She did not inform the respondent of this information as she did not consider herself an employee at this stage.
Determination
The Tribunal, having considered the evidence, determine that the claimant was on lay-off following the death of the person she was caring for.
The letter furnished her on 7th January, 2013 by her employer was not a notice of dismissal but was for the purposes of obtaining social welfare.
It was her expectation that some other work be offered her because she had contacted the employer subsequent to the above date seeking further work.
The offer of the employer made on 19th March, 2013 to start in Clontarf on 27th March, 2013 was evidence that she still considered herself an employee of the respondent, which is supported by the fact that she accepted the offer.
The Tribunal have determined that the claimant was still on layoff subsequent to this date. The proper procedure that she should have followed would be the service on the employer of an RP9 form if she wished to seek redundancy. The appellant did not do this, therefore she was not entitled to a redundancy payment.
Accordingly, the claim under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)