UD1300/2011, RP1735/2011, MN1408/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. MacCarthy SC

Members:     Mr J. O’Neill

                     Mr N. Dowling

heard these claims at Dublin on 17 October 2012

         and 28 January & 14 October 2013

Representation:

Claimant:

                    Mr Dara McNamara BL instructed by Mr Patrick Cunningham,

                     P. B. Cunningham & Co. Solicitors, Suite 212, The Capel Building,

                     Mary’s Abbey, Dublin 7

Respondent:

         Mr Tom Mallon BL on the first day, Mr Peter Ward SC on the subsequent days,

         Both instructed by Mr Kevin Langford, Arthur Cox Solicitors,

         Earlsfort Centre, Earlsfort Terrace, Dublin 2

The determination of the Tribunal was as follows:

Preliminary Issues

The claimant was recruited in 2000 by a developer as general manager of the respondent company, which operated a Dublin Hotel as part of a restructuring put together by a leading accountancy practice. It was felt essential to keep the hotel trading in order to protect certain tax reliefs which were contingent on the hotel continuing to trade. At this stage the claimant owned 25% of the shares in the respondent.

In 2005 the claimant was involved in a scheme whereby the balance of the shares of the respondent came to be owned by a company in which the claimant owned 100% of the shares. The respondent’s human resource manager (HR) was co-director with the claimant in the respondent

Two other companies in which the claimant was the beneficial owner owned the property in which the hotel operated. Substantial borrowings for these transactions were provided by a financial institution.

The respondent company continued to operate the hotel, with the claimant continuing in the role of general manager, until 17 January 2011 when receivers were appointed to all three companies involved in the 2005 restructuring. Later the claimant instituted proceedings challenging the validity of their appointment.

The receivers appointed a management company from the date of their appointment and from that date the claimant and HR were allegedly side-lined in the operation of the hotel. Civil proceedings, as a result of which the claimant agreed not to interfere in the operation of the hotel, were instituted in early February 2009. On 4 April 2011 the receivers issued the claimant with notice of termination by reason of redundancy effective 18 April 2011.

The respondent raised a preliminary issue that the claimant was not an employee of the respondent such that there was no jurisdiction to hear the claims. The claimant’s position was that, having issued a form RP50 notifying the claimant of his being made redundant, the respondent was now estopped from denying that the claimant was an employee.

The Tribunal then heard evidence from both HR and the claimant on the preliminary issues.

Determination:

On the issue of estoppel the Tribunal was satisfied that, despite the actions of the respondent in issuing the claimant with form RP50, it is for the Tribunal to satisfy itself as to its jurisdiction to hear the claims.

The evidence of HR showed that the claimant did not have a written contract of employment and that no records existed of any paid annual leave taken by the claimant or of any records kept of his hours of work for the purposes of compliance with the Organisation of Working Time Act, 1997. It is not in question that the claimant had a very “hands on” role in the operation of the respondent. Indeed the respondent happily conceded his deep commitment to the operation of the hotel. The claimant described himself as the “big boss” of the operation and, when questioned by members of the Tribunal, accepted that there was no-one in the respondent who had the authority to dismiss him, at least before the appointment of the receivers.

Directly or indirectly the claimant controlled 100% of the shares in the company and he was not therefore subject to the control of anybody else until the receivers were appointed. While it might be said that this position changed after the receivers were appointed, he did not, after that date accrue the requisite twelve months service to be covered by the Unfair Dismissals Acts, or indeed requisite service for the purpose of the other Acts.

Accordingly, the Tribunal rules that there is no jurisdiction to hear the claims under the Unfair Dismissals Acts, 1977 to 2007, the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)