EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Padraic Stapleton– appellant 1 RP1155/2012
Patrick Kennedy– appellant 2 RP1156/2012
Against
OMC Engineering Limited - respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr D. McEvoy
heard this appeal at Thurles on 12th February 2014
Representation:
Appellant(s) : Mr Declan Coughlan, Butler Cunningham & Molony, Solicitors,
Templemore, Co. Tipperary
Respondent(s) : no appearance by or on behalf of the respondent
The decision of the Tribunal was as follows:-
Background
The respondent company was involved in the manufacture and fabrication of stainless steel. The respondent ran into financial difficulties. Being faced with having to put the appellant/employees on lay-off, the directors offered them an opportunity to work for another company (AC) on a temporary basis until work became available for them again with the respondent. The respondent and AC were unconnected but had two common directors. There was not a transfer of the respondent’s business to AC, which was involved in manufacturing recycling systems. The appellants opted to work with AC until the respondent resumed production. In effect, the appellants were put on lay-off by the respondent from 24 September 2010 and were issued with their P45s on that date for payroll purposes and so that they could commence with AC. Verbal assurances had been given by the directors of the respondent company to the appellants that notwithstanding the issuing of a P45 the respondent would take them back as soon as work became available. They each understood that they were still in the employment of the respondent and that this was a temporary arrangement.
The appellants first became aware that they were being made redundant in December 2011. Their position was that their employment ended on 21 December 2011 and not the 24 September 2010 when the temporary arrangement was taken up by each employee.
Determination
The Tribunal is satisfied that all parties were on notice of the hearing. There was no appearance by or on behalf of the respondent and the Tribunal heard the uncontested evidence of each employee.
The Tribunal, having considered the evidence and submissions made by the appellants, is satisfied that the appellants, who had been on lay-off from the respondent from 24 September 2010, were dismissed on receipt of the RP50s issued to them on 21 December 2011. The T1A forms were amended to show this the correct date of dismissal. Accordingly, the claims lodged under the Redundancy Payments Acts on 10 October 2012 were within the statutory time limit of 52 weeks. An employee is entitled to take up employment on a temporary basis during a period of lay-off.
The Tribunal is satisfied that the appellants were not dismissed on 24 September 2010 and that each and every one of them was to resume work with the respondent when work became available. However, the respondent was unable to offer them further work and on 21 December 2011 the respondent issued the appellants with RP50s. The Tribunal finds that termination of employment was by reason of redundancy and awards each appellant a lump sum payment under the Redundancy Payments Acts 1967 to 2007, based on the following data:
Appellant 1
Date of Commencement: 18 September 2006
Date of Termination: 21 December 2011
Weekly Gross Pay: €655.00
Appellant 2
Date of Commencement: 3 July 2000
Date of Termination: 21 December 2011
Weekly Gross Pay: €874.00
The award made under the Redundancy Payments Acts, 1967 to 2007 is made subject to the appellants having been in insurable employment under the Social Welfare Consolidation Act, 2005 during the relevant period. It should be noted that payments from the social insurance fund are limited to a maximum of €600 per week.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)