UD870/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Paul Moloney,  -   claimant                                                                                     UD870/2012

against

Keg Securities Tralee Limited  -   respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. Hurley

Members:     Mr T. Gill

                    Mr F. Dorgan

heard this claim at Limerick on 4th February 2014

Representation:

Claimant:         Connolly O'Neill, Solicitors, 13 Parnell Street, Ennis, Co. Clare

Respondent:    No appearance or representation on behalf of the respondent.

Summary of evidence:

The respondent company was notified of the date, time and venue to its registered office. Furthermore the respondent company indicated their intention to contest the claim by a T2 form lodged with the Tribunal in June 2012 on the basis that the claimant continued to be employed.

It was the claimant’s evidence that he commenced his employment with the respondent as a security officer on the 24^th February 2008. A contract of employment was provided to him at that time. The employment appears to have been uneventful until late 2011 when the director said to the claimant that it had come to his attention that the claimant was not registered with the Private Security Authority. This was an oversight on the part of the claimant however he rectified this and the Private Security Authority re-registered him retrospectively to March 2011 when he should have renewed his registration. The claimant informed the director that he had rectified the matter. At the hearing the claimant provided a recent letter from the Private Security Authority which stated that he was registered from the 13^th March 2009 to the 12^th March 2011 and from the 12^th March 2011 to the 12^th March 2013.

On the 16^th January 2012 the director told the claimant that his position was terminating but that if he agreed to sign a letter stating that he had requested a P45 then he would be re-employed as a new employee. The claimant thought the situation might be linked to the issue of his registration with the Authority but by then he had assured the director that he was registered. The claimant was not given time to take advice on the situation and he signed and dated the letter put before him under duress. The claimant signed the letter as he felt he had no option but to do so. Due to his personal circumstances at the time he needed to continue working. The claimant was then provided with a P45 and a new contract which he signed. The contract appeared to have identical terms and conditions but stated a date of commencement of 21^st January 2012.

The claimant was subsequently informed on 23^rd April 2012 that his position was redundant. He acknowledged that there was a mention of reduced hours in either November or December 2011. The claimant was informed that the selection was carried out on the basis of being last in, first out. It was the claimant’s case that that this was based on the contract and P45 issued to him in January 2012 when in fact he had a continuous period of employment from 2008. In or around the time of April 2012 three relatives of the manager began employment in the company.

Following the termination of his employment the claimant received a telephone call from the company offering him a shift to help him out. The claimant was employed after April 2012 on a temporary basis working whatever shifts were available until June 2013 when the respondent company lost the contract with the shopping centre. The claimant was subsequently employed by the new company in June 2013 under a new contract of employment and on a full-time basis. The claimant gave evidence of loss.

Determination:

Based on the claimant’s uncontested evidence it is clear to the Tribunal that the respondent company attempted to break the claimant’s service in January 2012. The impact of which was the selection of the claimant’s position for redundancy in April 2012 on the basis of the last in, first out selection process. The Tribunal finds that the dismissal of the claimant was unfair and awards the claimant compensation in the sum of €20,592 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)