EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Tom Nolan RP523/2013
- Appellant
Against
Bridget Nolan T/A Tivoli Dry Cleaners
- 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 15th April 2014
Representation:
Appellant: In person
Respondent: Mr. Harry Carpendale,
Boland & Co.,, Solicitors, Patrick's Court, Patrick Street, Kilkenny
The decision of the Tribunal was as follows:-
The respondent trades as a dry cleaning business which operated from two sites. The appellant commenced employment with the respondent in 1973 and during the course of his employment the ownership changed however his service was not broken.
He had for a time worked forty hours per week which reduced to three days per week in 2006 and was further reduced to two days per week in and around 2010. He had no set hours but instead worked flexible hours to facilitate his employer and would receive text messages when he was required to work. He regularly sought a return to five days per week or any additional hours.
In 2011 when he was offered a full time position at another site run by the respondent he feared this move would break his long service and turned down the offer. Eventually from the 19 March 2013 he was working one day per week. He submitted an RP9 form to his employer seeking redundancy which was returned unsigned. Although the appellant accepted he was offered three days per week he did not accept that those hours were guaranteed and had they been guaranteed for a period of three months he would have accepted the offer.
The respondent told the Tribunal that she took over the business as a going concern in 2003. The appellant and the respondent had been colleagues prior to this for four years.
The appellant worked a five day week until 2006 when his working week was changed to a three day week. In 2010 his hours were reduced to a two day week. The appellant did not raise any issue or grievance in respect of the change in his working hours.
In 2011 the respondent offered the appellant a full time position in another premises. The appellant declined the offer because of his situation at the time. In 2012 the appellant sought a full time position from the respondent but there was no full time position available.
The respondent received an RP9 form, seeking redundancy, from the appellant. The respondent then offered the appellant a three day week. The appellant insisted that this was not sufficient and he wanted to work full time for five days per week.
Determination
The first issue for the Tribunal to determine is the appellant’s “normal working week” at the 26th March 2013.
The Tribunal is of the opinion that the appellant did agree to variations in his working hours and terms since 2006 and is further of the opinion that these were not changes that were agreed to be temporary. The fact that the appellant rejected increased hours of work suggests his satisfaction with the reduced hours, and, notwithstanding the position adopted by him in March 2013 that he was interested in a full forty hour week only, the Tribunal is of the view that the appellant never envisaged actually returning to the forty hour week worked in 2006 and it was not agreed or understood in 2006 that he would do so. Indeed, when offered the opportunity of a five day working as between the respondent’s two premises, he rejected the offer as, given the level of his Social Welfare Income; it would not have been worth his while to accept the offer.
From 2010 onward the appellant worked a 2 day week. The Tribunal is of the view that this represented the appellant’s normal working week. This was reduced to one day per week which did not constitute the creation of a Short Time situation pursuant to the Legislation.
The only claim before the Tribunal is under the Redundancy Payments Act 1967 and the only issue to be determined is whether the appellant was in a redundancy situation. The appellant was not placed on short time as his normal working week was not reduced by more than 50% nor was his remuneration so reduced.
In the circumstances, the appellant was not entitled to trigger a redundancy by serving an RP9 Part B. Accordingly, the Tribunal considers that the appellant terminated his own employment and has no right to redundancy.
The Tribunal is further of the view that the respondent employer sought to be reasonable in offering the appellant additional hours which the appellant rejected.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)