EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
RP52/13
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 commenced employment on 2nd February 1993. He had been responsible and trustworthy. In or around February 2010 the appellant reached his 65th birthday and collected his CIF pension and retired. Company policy was that employees retired at 65 years of age. Before the appellant’s 65th birthday the appellant told the respondent that he was happy to go but if work was available he would be happy to stay on. By way of agreement the company agreed to provide him with work. In fact the appellant worked the vast majority of the following two years.
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. The appellant was laid off on 18th November 2011. Many months later the appellant served an RP77 on the respondent seeking a redundancy payment. Subsequently, the respondent put him in touch with his representative, JB who facilitated a meeting between himself and the appellant.
Having discussed the matter beforehand with AM, JB met the appellant on 26th September 2012. Following that meeting JB believed that the appellant was not entitled to a redundancy payment
Appellant’s Case:
The appellant commenced employment on 2nd February 1993 and was employed as a truck driver. He was not furnished with a contract of employment. He had a first class working relationship with the respondent.
He was kept in employment most of the time during the downturn in the economy in 2010. He had heard of other employees being sent home when no work was available but he got preferential treatment.
Shortly before he reached his 65th birthday he had a conversation with the respondent in relation to his non entitlement to redundancy. At no time did he discuss his retirement during his tenure. Other employees worked beyond their 65th birthday. After his 65th birthday he continued to work for the respondent.
In November 2011 the appellant was told he was being let go as work was very scarce. Younger employees continued to work for the respondent. He received his P45 and his date of cessation was 18th November 2011. He met the respondent’s representative in early October 2012 in relation to a redundancy payment. He was left in no doubt that he was entitled to redundancy.
He sought advice from NERA thereafter and was advised to complete an RP50 form which he served on the respondent at the end of November 2012.
As he received no response from the respondent he sent a Workplace Relations Form to the Employment Appeals Tribunal on 13th December 2012.
Determination:
The appellant in this case was not furnished with a contract of employment and this is accepted by both parties. Furthermore, no evidence was adduced to show that he was statutorily obliged to retire at sixty-five. The commencement of his pension payment is not necessarily synonymous with a contributor’s compulsory retirement.
In the circumstances where the appellant was issued with his P45 the Tribunal is satisfied that he is entitled to a redundancy payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:
Date of Birth: 08 February 1945
Date of Commencement: 02 February 1993
Date of Termination: 18 November 2011
Gross Weekly Wage: €585.00
This award is made subject to the appellant fulfilling current social welfare requirements in relation to PRSI contributions.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)