UD1709/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                         CASE NO.

EMPLOYEE (appellant)                                                                                    UD1709/2012

against the recommendation of the Rights Commissioner in the case of:

EMPLOYER (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms V. Gates

Members:     Mr R. Murphy

                    Mr F. Keoghan

heard this appeal at Dublin on 10th January 2014

Representation:

_______________

Appellant(s) :              Cooke & Kinsella, Solicitors, Wexford Road, Arklow, Co. Wicklow

Respondent(s) :           In person

The determination of the Tribunal was as follows:

This case came before the Tribunal by way of an appeal by the employee from a decision of the Rights Commissioners dated the 8^th November, 2012 (r-124587-ud-12/EH).

This case was heard in conjunction with MN712/2012.

The Director of the respondent company told the Tribunal that her company took over the lease of the premises in or about 2011. The claimant had been working for the previous business since 2001 and continued to work for the respondent as a counter assistant/delivery driver.

Following an inspection by the National Employment Rights Authority (NERA) in February, 2012 it was found that the claimant was being paid €5.50 per hour instead of €8.65 per hour. NERA directed re-imbursement of €1,658 to the claimant, which was duly paid by the respondent company. Following the inspection, the Director had discussions with the company accountant who recommended and/or advised that the claimant’s status be changed from employee to self-employed. The Director stated that she discussed the change of status with the claimant who did not indicate that she would be unhappy with that arrangement. The Director told the claimant that she would issue her a P45 in order to allow for the change in status. When the P45 was issued the claimant protested as she did not want her status as an employee to change. The Director asked for the P45 back but the claimant refused to do so and an unseemly scene ensued. In the Director’s opinion, the claimant in refusing to take back the P45, also refused to take back the job.

The claimant gave evidence that she was in receipt of a welfare benefit, specifically deserted wives allowance for a period of 26 years and in addition was entitled to a medical card for herself and her dependent child.   The claimant stated she never gave any indication that she wanted to change her status to self-employed. The claimant stated that when the Director handed her the P45 she told the claimant that she did not work for the company any more. The claimant told the Tribunal that she could never work for the company again as relations between the parties had broken down as a result of the incidents which took place at the business premises and later at the claimant’s home.

Determination

The Tribunal accepts the evidence of the claimant that on the date that the NERA inspection took place she was reassured by a social welfare officer, also in attendance that her social welfare benefit would not be affected by any possible change in her hourly pay.

Indeed there was no change in the claimant’s social welfare benefits following the pay increase directed by NERA.

Therefore the Tribunal finds the claimant had no reason to request that her employment status change and that the suggestion to change status came solely from the employer and the change in status was solely in the interests of the company.

The issue of the P45 by the employer to the claimant without her agreement constitutes an unfair dismissal and the Tribunal upholds the decision of the Rights Commissioner in respect of the Unfair Dismissal. The Rights Commissioner decision is varied to the extent that as the Tribunal finds that the employment relationship is now irretrievably broken down, re-instatement if not a viable option.

The claimant has not been able to secure permanent employment since the date of termination. In the circumstances, the Tribunal awards the sum of €7,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)