RP612/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                CASE NO.

                                                                                                                        RP612/2012

Employee        -           Appellant

Against

Employer         -           Respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Browne

                     Mr A. Butler

heard this appeal at Carlow on 6th December 2013.

Representation:

Appellant:       Mr John Keogh, C/O Anthony Keogh, Ballyvass, Castledermot,

                        Co Kildare

Respondent:    Ms Claire Bruton BL, instructed by Ms Anne Lyne, Hayes, Solicitors,

                        Lavery House, Earlsfort Terrace, Dublin 2

The decision of the Tribunal was as follows:-

Background:

The appellant was employed by the respondent as a potato picker on yearly fixed term contracts.   The work was seasonal broken down into two periods per year being May to July and September to the first week in December.   Each year up to 2010 the appellant was asked at the end of the year if he would be available for the following year.   In 2010 the appellant was invited to interview for the post for the following year.   He attended for interview and was successful. In or around 21 March 2012 the positions were advertised on the FÁS website and on the respondent’s own website with a closing date of 26 March 2012.   The appellant was not advised by the respondent that the positions were advertised and only became aware of the advertisement on 26 March.   He did not apply for the position and was not invited to be interviewed.  

However, the appellant wrote to the respondent on 26March 2012 asking the respondent to confirm if he and his four colleagues were now being made redundant.

It was the appellant’s case that he had been made redundant when not invited back to work for the year 2012.  

It was the respondent’s case that the appellant was not made redundant.   The work was still there and being done by other workers.   The respondent was required because of new transparency procedures to advertise the positions and had the appellant applied for the position he may be still employed. The respondent said the salary was almost the same being €12.60 per hour as opposed to €13.00 per hour and the reduction was due to pay cuts across the board for State and Semi-State workers. There would also be some overtime.

Determination:

The Tribunal finds that all it is required to determine is whether in the circumstances the appellant had been made redundant and if so was he entitled to the statutory redundancy lump sum.

Having carefully considered the evidence adduced at the hearing and the submissions of Counsel for the respondent the Tribunal finds that the termination of appellant’s position with the respondent was not by reason of redundancy as per section 7(2) of the Redundancy Payments Act 1967, as amended, in particular as the work carried out by the appellant had not ceased or diminished or was not expected to cease or diminish.  

Accordingly, the appeal under the Redundancy Payments Act 1967-2007 fails.

In the circumstances the Tribunal does not find it necessary to deal with the other submissions of Counsel for the respondent save the submission that the appellant had no locus standii by virtue of the fact that his Union representative had lodged his claim to the EAT on his behalf.   It appears to the Tribunal that the submission should refer to the Union representative not having standing to lodge the appeal rather than the appellant.   The Tribunal notes that the appellant had completed and signed his own form and that the Union representative had simply forwarded it.   The procedures for appealing under Act of 1967 is set out in the Redundancy (Redundancy Appeals Tribunal) Regulations 1968 - (S.I. No. 24 of 1968), as amended by the Redundancy (Redundancy Appeals Tribunal) Regulations 1979 - (S.I. No. 114 of 1979) the relevant parts of which provide as follows;-

“3.Where a person (in these Regulations referred to as the appellant) desires to appeal under section 39(15) of the Act to the Tribunal he shall give written notice of appeal to the Secretary of the Tribunal.

And

18.-(1) Any notice required by these Regulations shall be in writing, and all notices and documents required or authorised by these Regulations to be sent or given to any person may be deemed to be duly sent if sent by registered post and directed-

(ii)       in the case of the Secretary of the Appeals Tribunal, to the office of the Secretary,

And

23.  The Tribunal may consider and decide any question duly referred to it for consideration and determination, notwithstanding the failure or neglect of any person to comply with a requirement of these Regulations.”

The Tribunal finds that when the Union representative forwarded the appeal on behalf of the appellant he directed the appeal to the Secretary of the Employment Appeals Tribunal but in any event the Tribunal is not precluded from hearing the appeal even if the forwarding of the appeal by the Union representative was a failure or neglect of the appellant to comply with a requirement of the Regulations.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

(CHAIRMAN)