UD1386/2012, PW36/2013, PW33/2013

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms E. Daly BL

Members:     Mr D. Morrison

                   Ms A. Moore

heard these appeals at Letterkenny on 3 March, 2014

Representation:

Appellant:

                   In person

Respondent:

                     No appearance by or representation on behalf of the respondent

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of both an employee and an employer appealing against the decision of the Rights Commissioner reference R-125613-PW-12/SR. In addition the employee was also pursuing a first instance claim under the Unfair Dismissals Acts. For clarification purposes the parties shall be referred to as the employee and the employer

Preliminary Issue

In regard to the claim under the Unfair Dismissals Acts it was the employer’s position that the claimant had not been dismissed, rather he had gone on sick leave on being notified of the possibility of his position being declared redundant and thereafter remained an employee on long-term sick leave.

On 25 June 2012 the managing director (MD) of the employer met the employee, who because of an ongoing medical condition, sought out MD having unsuccessfully tried to find MD’s son to inform the employer of his need to go home. Whilst there is a dispute between the parties as to the detail of that meeting it was common case that the question of the employee’s position as accountant was declared as redundant on account of the employee not having the skill-set required of a financial controller, a role MD wished to fill in the employer in order to allow MD to effect a handover of the business to his son.

The employee went home ill on 25 June 2012 and thereafter did not engage with the employer. On 29 June 2012 MD wrote a letter to the employee headed

Proposed Redundancy Accountancy

In the following terms

Dear Employee,

I refer to our meeting of 25 June 2012 where you were informed that the employer intended to implement a redundancy amongst staff in the accountancy area. You were informed that the proposed redundancy was as a direct result of requirement (sic) to reorganize the company structure in line with growth of the business and the requirement of additional skills and experience.

I advised you that unfortunately your position of Accountant is to be made redundant as a consequence of this proposed reorganization and the creation of a new role of Financial Controller which requires skills and experience that you not at this time possess.

In accordance with the Redundancy Payments Acts 1967 - 2007 the Company issues you with two weeks notice of redundancy from the date of the aforementioned meeting 25/06/12. You will further be entitled to 4 weeks notice under the Minimum Notice and Terms of Employment Acts 1973. Both periods of notice will run concurrently. The company will pay in lieu of the final 2 weeks of the notice period.

Redundancy settlements are based on statutory entitlements which equates to two weeks pay per year of service plus one weeks pay. The rate of pay for redundancy settlements is capped at €600 per week by the Dept of Trade Enterprise and Employment. Pension contribution will be paid to cessation date.

The company is prepared to make an ex-gratia payment of three 3 months salary in return for you signing a compromise disclaimer agreement a copy of which is attached with this letter. This agreement requires your input as record keeper to enable its completion.

Your statutory redundancy Settlement will be €12,680-32 based on 10 years service plus 1 weeks pay. Your ex-gratia payment will be €11,773-47 gross. This amount will be paid to you on the last day of work in addition to any pay due in lieu of notice or holiday entitlements yet to be calculated when the records maintained by yourself become available.

The company regrets that this course of action is necessary and understands the hardship that will be caused through no fault of your own. However, we believe the Company has no reasonable alternative.

Please do not hesitate to contact me regarding the contents of this letter.

Yours Sincerely,

MD

The MD gave evidence that despite the wording of the letter that he did not intend that the employee be made redundant, but rather considered that he was discussing the possibility of making the employee redundant and was awaiting his response to that proposal, when the employee went on sick leave and never returned. He denies that a dismissal occurred either at the meeting or was done by the letter of 29 June.

The employee gave evidence that once he received the letter of 29 June from the MD, that he was made redundant.

The Tribunal was satisfied that, regardless of the employer’s view that there was a draft severance agreement subject to further engagement by the employee, the employee was entitled to construe this letter as a communication of the fact that he was being dismissed by reason of redundancy. Accordingly, the Tribunal is satisfied that this letter effected the dismissal of the employee such that there is jurisdiction to hear the substantive claim under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)