EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Employee UD370/2012
WT145/2012
against
Employer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Ms. M. Sweeney
Mr. J. Flavin
heard this claim at Limerick on 14th November 2013
Representation:
Claimant: Mr Ger Kennedy, SIPTU, Conroy Hall, Park Road, Killarney, Co Kerry
Respondent: Mr. Mike Cusack, Helix HR, Deerpark, Clarecastle, Co Clare
Respondent’s case:
The respondent is a voluntary organisation run by a board of management. This board comprised of volunteers with the exception of the claimant who was an employed by the respondent. There were a number of other people working for the organisation through the Job Incentive Scheme and one supervisor who was contracted to Fás. The funding for the claimant’s wages came from Limerick County Council and the Paul Partnership Project.
There were two witnesses for the respondent, both were board members and they told the Tribunal that it had become obvious to them that the funding for the claimant’s wages was about to cease. One said that in order to avoid reckless trading and putting themselves in a vulnerable financial position the board decided to cease trading and make the claimant redundant. The claimant was not replaced. This decision was taken at a board meeting on 8/11/11 which the claimant had not attended and had excused himself from.
The other witness for the respondent was nominated to communicate this decision to the claimant and called to his home with a cheque and a print out of the calculation of his redundancy lump sum together with a covering note. The claimant was not in when this witness called to his house and he left the envelope containing the cheque and documents in his post box. The claimant was never asked to sign a form RP50.
There was no prior discussion with the claimant about redundancy and he was not given an opportunity to suggest any alternative to redundancy. All the other employees of the respondent had been transferred to another organisation prior to the claimant being made redundant.
Claimant’s case:
The claimant was employed by the respondent as a manager from 20/03/00 until his employment was terminated by way of redundancy on 11/11/11. Although he was a member of the board of management the claimant was not invited to the board meeting of 8/11/11 and was not given prior notice of this meeting. He subsequently sought minutes of the meeting but did not receive them. The fact of his redundancy came as a bolt from the blue and the first he heard of it was when he received the cheque and redundancy calculation which had been left in his post box.
It was the claimant’s position that a genuine redundancy situation did not exist and that at no time was the respondent told that funding for his wages had ceased. There were always difficulties in securing funding from Limerick County Council but no such difficulties when it came to funding from the Paul Partnership and the claimant questioned why he could not have been offered lay-off or short time while funding was sought.
Determination:
Having carefully considered all the evidence the Tribunal finds by a majority decision that the dismissal of the claimant was not unfair and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
The respondent’s position was that a redundancy existed by virtue of the fact that the company ceased to trade. A sum of money was paid to the claimant by way of a redundancy lump sum. However the claimant was never required to sign an RP50 form.
It is clear to the Tribunal that there was no fair or reasonable approach on behalf of the respondent in the time leading up to the redundancy. The rationale of the redundancy was not properly communicated to the claimant and had there been communication the situation may have turned out differently.
In respect of his claim under the Organisation of Working Time Act, 1997 the claimant gave evidence in respect of extra hours he worked and was supposed to receive time off in lieu of. However under this act the Tribunal can only consider claims in respect of annual leave and public holidays. As there was no evidence regarding either of these the Tribunal dismisses the claim under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________ (CHAIRMAN)