EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Employer UD1323/2011
-appellant
against the recommendation of the Rights Commissioner in the case of:
Employee -respondent
-v-
Employer -appellant
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. F. Moloney
Ms N. Greene
heard this appeal at Naas on 28th March 2013
Representation:
Appellant: Mr. Andrew Cody, Reidy Stafford, Solicitors,
Main Street, Newbridge, Co Kildare
Respondent: Ms Rioghnagh Bracken, R Bracken & Co, Solicitors,
Main Street, Clane, Co. Kildare
Background:
The case before the Tribunal is by way of an employer appealing a Recommendation of the Rights Commissioner ref: r-090967-ud-10/RG, under the Unfair Dismissals Acts, 1977 To 2007. The employer being the appellant and the employee the respondent. The employer is a public house and the employee was employed from November 2007 to January 2010 and worked collecting glasses and also behind the bar.
The employee representative contends that in December 2009 the employee was out of work for six weeks because of a broken wrist. The employer paid him while he was out. When the doctor removed the cast he called to his employer and was told that there was no work. the claimant understood that a female had been taken on and had replaced him behind the bar.
The employee did sign redundancy forms but he did not know what he was signing; he thought it was a document for tax return or refund of tax form. The employee suffers from dyslexia.
The employer representative agreed in the main with his opposite adding that the employee was told that there would be no work but that there would be work for him in the future. The employee then asked to be paid redundancy. They did not have to pay him for redundancy because of the time limits but they did. The employee signed the redundancy forms. A lounge girl was taken on but she did not replace him because he was a barman.
The employee gave evidence. He had a good relationship with his employers. He broke his wrist and was out sick. He explained that he was told over the phone that there was no work. He went to the pub and spoke to the owners and signed forms. To the best of his knowledge he thought the employer needed the forms for tax. His employer did say that there would be further work but did not give a specific time. The young woman that was taken on was a lounge girl who progressed to a barwoman.
The employer gave evidence that the employee was out sick and he paid the employee while he was out sick. After Christmas 2009 the pub was quiet. He told the employee that there would be no work for a number of months and to call back on or around St. Patrick’s day. When he told the employee that there would be no work for a number of months he assumed that he had to give him redundancy pay and he asked his accountant to put this together.
Determination:
The Tribunal determines that a redundancy situation occurred. The appeal under the Unfair Dismissals Acts, 1977 To 2007, fails. Accordingly, the Recommendation of the Rights Commissioner ref: r-090967-ud-10/RG is upset.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)