RP42/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                               CASE NO.

                                                                                                                        RP42/12

EMPLOYEE - appellant

Against

EMPLOYER - respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Mr R. Murphy

                    Mr F. Barry

heard this appeal at Dublin on 9th May 2013, 27th November 2013 and 13th January 2014

Representation:

Appellant:       Mr. Owen Keany BL instructed by Ms Rebecca Hearst, Michael O’Shea &                        Company Solicitors, 291 Templeogue Road, Dublin 6w

Respondent:    ESA Consultants, The Novum Building, Clonshaugh Industrial

                        Estate, Dublin 17

The decision of the Tribunal was as follows:-

Respondent’s Case:

The respondent specialises in the supply of construction equipment. AM is Managing Director. The company employed approximately thirty employees who consisted of general operatives, jcb drivers, truck drivers, dumper drivers and a small number of office staff. The appellant often did not work Mondays but would work days in lieu to make up his time. He was paid for the hours he worked each week.

Due to a significant down turn in the construction industry in 2010 a 10% pay cut was imposed on all staff and due to the inclement weather towards the end of 2010 staff were placed on temporary lay off.

To keep the company viable five redundancies occurred over a six month period in 2011 and five to six employees were temporarily laid off on 24^th November 2011, the appellant being one of the five chosen. On AM’s instruction, (Managing Director of the respondent company) BM, the respondent’s accountant, issued the appellant with a letter that day placing the appellant on lay off. In mid January 2012 BM sent the RP9 counter notice to the appellant notice on instruction from AM as at that time there was an expectation that the company could provide work for all its employees and could meet its payroll commitments without fail. AM contacted the appellant by telephone but he did not answer his phone.

As the appellant did not return to work he has been replaced in his role.

Appellant’s Case:

The appellant commenced working for the respondent in 1996. He left the company some time after that and secured employment elsewhere and recommenced working for the respondent on 16^th September 2002 as a truck driver. On 8^th February 2010 the respondent imposed a 10% pay cut on all its employees. On 29^th November 2010 the appellant was put on temporary lay off. On 25^th February 2011 he returned to work. The appellant contended that he worked through all weathers.

The Transport Manager (A) kept the employees updated on forthcoming work. On occasion employees were sent home due to no work being available.

On 24^th November 2011 the appellant together with two of his colleagues were handed a letter by the respondent and again were placed on temporary lay off that day. The appellant served an RP9 in which he served notice of his intention to claim a redundancy lump sum on the respondent on 12^th January 2012. The respondent served a counter notice on the appellant on 13^th January 2012 guaranteeing him a period of not less than thirteen weeks work. Based on past experience and because he was sent home many times due to lack of work, the appellant did not believe that the respondent could guarantee him continuous work. He did not return to work and on 14^th January 2012 he sent a Workplace Relations Complaint Form to the Employment Appeals Tribunal.

Determination:

The Tribunal carefully considered the evidence adduced during the course of this three day hearing.

The Tribunal is satisfied that the lay-off period which commenced on 24^th November 2011 was temporary. The Tribunal finds that the appellant was incorrect in concluding that the offer of work was not a genuine offer of employment. The appellant did not return to work and therefore has no basis for claiming that the offer of thirteen weeks full time work would not be made available to him.

The appeal under the Redundancy Payments Acts, 1967 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

           (CHAIRMAN)