RP911/2012, MN892/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEALS OF:                                                                                                           CASE NO.

Sean Kearney                                                                                                              RP911/2012                                                                                                                                       MN892/2012                                                      

Against

City Post Limited

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T. O'Mahony B.L.

Members:     Mr. P. Casey

heard this appeal at Cork on 13th December 2013

Representation:

Appellant:

             Ms Derval O'Halloran, McGuire Desmond, Solicitors, 5 Lapps Quay, Cork

Respondent:

             Ms Niamh Kelly, Peninsula Business Services (Ireland) Limited,

            Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3

Summary of Evidence:

Dismissal was in dispute in that the respondent claimed that the appellant had resigned of his own volition. The appellant contended that his job became redundant and he was not offered any suitable alternative employment and therefore was entitled to a redundancy payment.

The appellant commenced employment in the business as a postman on 19^th May 2003 and through two transfers of the undertaking (one in 2008 and one in July 2011) he was employed by the respondent from July 2011. Following each transfer the appellant continued to work for the new employer doing the same job, in the same place and without any change to his terms and conditions of employment. He had not been paid a redundancy payment at the time of these transfers. The respondent’s position was that the appellant’s employment in the business only commenced in 2008.

Since the commencement of his employment in 2003, the appellant had been specifically assigned to delivering and collecting post to and from solicitors. However in summer 2012 the respondent found that this service was no longer financially viable and took the decision to change to delivering leaflets and other unsolicited and unaddressed mail to housing estates from the end of July 2012. The appellant was told in June 2012 that he was to be made redundant but before the end of that month he was told that he was instead to be placed on a reduced working week for four weeks delivering the unaddressed mail to housing estates. The appellant did not consider this suitable alternative work and sought payment of a redundancy lump sum.

The respondent contended that the appellant chose not to take up the alternative position offered to him even though it was basically the same type of work he had been already engaged in; that there had not been a dismissal by way of redundancy or otherwise but that he had left the employment of his own volition and was not entitled to any redundancy payment. The appellant was paid €360.00 per week and last worked on 30^th July 2012.

Determination:

Having carefully considered the evidence he Tribunal finds, by majority, Mr. Casey dissenting, that the claimant’s position had been made redundant on 30^th July 2012 and that the employment offered to him was significantly different and thus not suitable alternative employment for him.

The Tribunal is satisfied that there was a transfer of the undertaking in 2008 and again in or around July 2011 to the respondent. Accordingly, the appellant has continuity of employment from 19^th May 2003. The appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following facts:

This award is made subject to the claimant having been in insurable employment, during the relevant period, in accordance with the Social Welfare Acts.

The appellant decided at the end of June 2012 that he would continue at work until the system would change on 30^th July 2012. Accordingly, the appellant had at least four weeks’ notice, which was his entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and his claim under those Acts fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)