EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee - claimant RP1024/2012
against
Employer - respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O'Carroll-Kelly BL
Members: Mr J. Horan
Mr P. Trehy
heard this appeal in Dublin on 15 November 2013
Representation:
_______________
Appellant(s):
No legal or trade union representation
Respondent(s):
No legal representation
The decision of the Tribunal was as follows:-
The appellant who described his occupation as falconer/pest control sought a redundancy lump sum with regard to an employment from 1 January 2009 to 8 August 2012. His gross monthly pay was claimed to have been €1,924.80. Contesting the appeal, the respondent said that the appellant had started with him on 1 August 2011 but that the employment had ceased after the appellant got sick on 3 April 2012.
Giving sworn testimony, the respondent said that the appellant had worked with another man (DR) who had had dealings with the respondent and had been working for a different company (GX) but that there had been a receivership of the principal and that the respondent had offered the appellant a job. On 3 April 2012 there was an incident when the appellant washed his car on the respondent’s time. The respondent contended that the appellant had not had permission for this. The appellant went on sick leave on that day and sent medical certificates but never returned to work for the respondent. On 8 August 2012 the appellant’s employment ended because there was no more work. The respondent had tried to contact the appellant but had received no reply. On 18 July 2012 the appellant had claimed redundancy. The respondent thought the appellant had left. He had previously given the appellant a verbal warning for the illegal activity of flying birds of prey from a jeep.
Under cross-examination, the respondent said that the appellant had told him to f*** off and had driven off in his jeep never to return. It was put to the respondent that he had been bullying and harassing the appellant to get him out of the job and that he had not replied to registered letters from the appellant seeking a redundancy payment. The respondent said that he had told the appellant all the work had ended but that he had thought the appellant had resigned.
The respondent told the Tribunal that he thought that the appellant had worked for DR in 2008 but that the respondent had won the contract and told DR as much. He received no documentation from DR about the appellant who told the respondent what he was being paid.
At this point in the Tribunal hearing the appellant told the Tribunal that he was “being paid the same way” and that he had got no P45 from the respondent. Giving sworn testimony the appellant showed sign-in sheets from when DR was there going as far forward as late July 2011.
The respondent now stated to the Tribunal that he had “no working relationship with” DR but that he (the respondent) “might cover for him the odd time”.
The appellant told the Tribunal that there had been a transfer in August 2011. The respondent put it to the appellant that the appellant had himself tendered for the work but the Tribunal accepted the appellant’s response that this was not relevant.
Determination:
The Tribunal has carefully considered all of the evidence together with the documentation handed in during the hearing.
The respondent stated that the claimant commenced employment with the respondent on 1 August 2011.The claimant stated that he had transferred over to the respondent under a transfer of undertakings from DR and, as a result, his employment commenced on 1 January 2009. The respondent denied any transfer of undertakings. The Tribunal notes that the respondent was not forthcoming in relation to his working relationship with DR. What is clear is that both the respondent and DR performed the same tasks at various GX sites. From contract to contract they moved to alternative GX sites but their roles on those sites were identical. The appellant stated that all of the terms and conditions, including remuneration, of his employment remained the same when he was transferred to the respondent. The respondent was unable to produce any documentary evidence to contradict the appellant’s evidence. On that basis the Tribunal prefers the appellant’s evidence and finds that his employment commenced on 1 January 2009.
The respondent stated that the appellant resigned his position on 3 April 2012. He stated that, following an argument on site, the appellant stormed off site and did not return. The appellant stated that he went on sick leave on 3 April 2012. Sick certificates were submitted for a period of three months. Those certificates were produced during the hearing. The respondent stated that he did receive them but did not act on them as he was of the view that the appellant had resigned. The Tribunal prefers the appellant’s evidence and finds that it would be illogical for the claimant to continue sending in sick certificates if he had resigned his position. On that basis the Tribunal finds that he was still employed by the respondent when the GX contract ceased in June 2012 and when the respondent made the remaining staff redundant.
Under the Redundancy Payments Acts, 1967 to 2007, the Tribunal finds that the appellant is entitled to a redundancy lump sum based on the following details:
Date of birth: 19 May 1967
Date of commencement: 01 January 2009
Date of termination: 05 June 2012
Gross weekly pay: €444.18
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)