EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
James Byrne RP511/2013
-appellant
Against
Ballon Meats
-respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms N. Greene
heard this appeal at Carlow on 21st January 2014 and 14th April 2014
Representation:
Appellant: Mr. Seamus Dowling, Seamus Dowling Enterprises,
Tí An Cnoc, Ballon Hill, Ballon, Carlow
Respondent: Mr. John Farrell, Ibec, Confederation House,
Waterford Business Park, Cork Road, Waterford
Background:
The appellant contends that on 17th May 2012 he was given one weeks notice. His employer paid him €6000.00 redundancy but has failed to give him the remainder of the money that he is owed.
The respondent contends that the appellant’s position was not made redundant. The appellant approached the respondent requesting that he be made redundant. The respondent told the appellant that it was not possible to do so as it was not affordable to the company. Discussions took place between the respondent company and the appellant which culminated in an agreed termination of the employment contract. The agreement was “In full and final settlement” and was committed to writing.
Respondent’s case:
The Tribunal heard evidence from JS, a witness for the respondent company. On the 10 April 2012 the appellant was absent from work. On the 11 April the witness called the appellant to a meeting. The appellant offered no satisfactory reason for his absence the previous day. The appellant enquired about being made redundant and was told that the company could not afford to pay him redundancy. On the 14 May 2012 a performance meeting was held with the appellant where the appellant said he could not keep up to the speed required on the processing line. On the 15 May 2012 the appellant was offered €6,000 severance and given time to consider the offer. On the 17 May the appellant accepted the offer and signed the agreement the following week. The evidence of JS was that the there was no reason for the appellant to leave his employment as his job was still available and he was not put under any pressure or threatened with a pay cut during the process leading to him leaving his employment. JS explained that the processing of an RP50 was an error by the company.
Appellant’s case:
The appellant’s evidence was that at a meeting in and around the 14 May 2012 he was called to a meeting concerning his performance and was threatened with a reduction in his pay and the withholding of his bonus for that week. His pay was compared with other employees at the meeting. He was removed from the job he was carrying out and recalled asking about redundancy and was told that they could not afford to pay him redundancy. Later that week he made a second enquiry about redundancy and was offered €6,000. To the best of his recollection of events he signed the acceptance that same day. He signed the agreement believing that it was his redundancy and although he was aware that it wasn’t the full amount he felt he had no choice and felt under pressure to accept the offer of €6,000.
Second day of hearing 14th April 2014:
The Respondent called Ms MG to give evidence. She works in the office of the respondent company. She had dealt with the administrative matters surrounding the appellant’s exit from the respondent. She was asked by the respondent representative if she made a claim to the Department of Social Protection for a rebate regarding a claim for redundancy for the appellant and she replied that she did not.
In cross-examination she was asked what she did if a redundancy case arose and she replied that she dealt with the payroll. She also explained that regarding the payment to the appellant, JS told her that it was a severance payment and that it was an agreement between the appellant and JS. She did sign the form RP 50. She also explained that it was her mistake that she used a redundancy form to record the payment. When asked about a rebate part of the form she replied that they did not apply for a rebate. The letters that were given to Revenue and another Department stating redundancy was paid to the appellant were her mistake.
In re-examination the witness explained that the letters were given to the appellant to assist him so he could claim back Income Tax.
Determination:
There are a number of questions for the Tribunal in this case as follows:
(a) Was the Appellant made redundant and, if so, was he entitled to receive his Statutory Redundancy.
(b) If he was so entitled, what is the Status of the Agreement on Severance dated the 25th May 2012.
Section 10 (b) of the Redundancy Payments Act 1971 provides that, in a case before the Tribunal where the Contract of Employment has been severed by the Employer, there is a presumption of termination by reason of redundancy.
The issue for the Tribunal is whether, in this instance, the Respondent Employer has rebutted this presumption.
Having considered the totality of the evidence, the Tribunal is of the view that the Appellant’s role was made Redundant. There was no evidence before the Tribunal that the Appellant was replaced. Indeed, JS for the Respondent Company informed the Tribunal that the Appellant was not replaced at the time.
Further, the Tribunal was not convinced by the explanation given to it as to why the Respondent Employer prepared an RP50 Form. While the “Wages Clerk” attributed the completion of this form to an error on her part, she did advise the Tribunal that she initially decided that it was a redundancy while, at the same time, was unable to clarify precisely when her view of the situation changed or what prompted this change.
The Tribunal must then consider the terms of the Severance Agreement of the 25th May 2012. It is not the function of the Tribunal to interfere with Lawful contractual relating between parties. In deciding what weight to give to such an Agreement, however, the Tribunal may consider whether it reflects an informed Agreement on the part of the Appellant against a backdrop of him understanding the rights being compromised. The Tribunal has to make an assessment of the Appellant’s likely level of understanding in light of evidence heard.
The Appellant indicated that he signed the Agreement on the day it was presented to him. He was not aware of his precise entitlements but did understand that the payment was less than full Statutory Redundancy. He felt under pressure to sign and accepted the indication given to him that the Respondent Company could not pay any more. The Appellant’s evidence before the Tribunal was that he equated “termination of my employment” as referring to his redundancy and, indeed, the first Legislation referred to in the Agreement are the Redundancy Acts.
The Tribunal is not convinced that the Appellant’s consent to the terms of the Agreement was fully informed. While the Agreement includes an acknowledgement of having an opportunity to take professional advice, the Tribunal is of the opinion that any such Agreement should include a clause to the effect that the Employee should take Independent Legal Advice.
In the circumstances, the Tribunal holds that the Appellant is entitled to his Statutory Redundancy and is not prohibited from receiving same by virtue of the provisions of the Severance Agreement dated the 25th May 2012.
The Tribunal awards the appellant a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:
Employment commenced 15th August 2000
Employment ended 25th May 2012
Gross pay €785.00
The Tribunal notes that the appellant has already received a payment of €6,000.00, which now constitutes part payment of his statutory redundancy entitlement.
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period. It should be noted that a statutory weekly ceiling of €600.00, applies to payments from the Social Insurance Fund.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)