EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Vasile Lupasco RP699/2013
MN500/2013
against
- Pascal Dinan and Martin Coady
T/A Glen Contractors
- B&F Meats Limited
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
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. Browne
Mr. F. Dorgan
heard this appeal at Kilkenny on 25th October 2013
Representation:
Appellant:
Mr Jim Kelly, Noreside Resource Centre, 3 St Canice's Court, Dean Street, Kilkenny
Respondent:
Nolan Farrell & Goff, Solicitors, Newtown, Waterford.
For Pascal Dinan and Martin Coady.
No appearance by or on behalf of B & F Meats Limited.
Determination on preliminary Issue
As the statutory time limit for initiating an appeal under section 24 of theRedundancy Payments Acts 1967 to 2007 is 52 weeks the appeal is within time and the Tribunal has jurisdiction to hear the appeal.
Substantive Issue
Respondent’s Case
The first named respondent is a slaughtering contractor. The second named respondent’s business is meat processing. The appellant was employed by the first named respondent from April 2004 and at the relevant time was working onthesecond respondent’s plant (Plant T). In August 2012 there was a fire in Plant T and it was closed for an extended period, except for the administrative section which was not affected by the fire. The second named respondent sourced other premises in which to continue its work. The appellant was then taken back to work in Plant S in or around early October 2012 and when work there slowed down he was moved to Plant C, boning animals and remained on the payroll of first named respondent, until he took up an offer of employment with the second named respondent. He commenced employment as a direct employee with the second named respondent from 31 December 2012. He had never told the appellant that he had no more work for him. He had work for the appellant had he remained in his employment but the appellant had actively sought to become a direct employee of the second named respondent and did so from 31 December 2012.
It was the first named respondent’s position that in taking up a position (with guaranteed work each week) meant that the appellant had resigned of his own volition and was not entitled to a redundancy payment.
The office manager of the second named respondent gave evidence that sometime after the fire the appellant told her he would be interested in a job and she gave him some work but he remained on the payroll of the first named respondent. As a direct employee of the second named respondent was leaving she offered the appellant that job, which would guarantee him two or three days work every week, and he accepted it. She advised the appellant to sort out his tax affairs with the first named defendant. The appellant commenced employment as a direct employee with the second named respondent from 31 December 2012.
Appellant’s Case
The appellant had been out of work for a number of weeks after the fire in August 2012. When work started in the new plant in or around October 2012 he resumed working for the first named respondent. However, he was subsequently told by a director of the first respondent that there was no more work available for him and that he was to work directly for the second respondent from then on. Consequently, the appellant took up employment with the second named respondent on 31 December 2012. There was no break between when he left the first named respondent and started with the second named respondent. He appellant had previously sought employment as a direct employee of the second named respondent.
The appellant contended that, as he had been told by the first respondent that there was no more work available, he had been made redundant and was therefore entitled to a redundancy lump sum under the Redundancy Payments Acts, 1967 to 2007.
Determination
Having considered the evidence of the three witnesses, the Tribunal finds on the balance of probability that the claimant left his employment with the first named respondent of his own volition to take up employment with the second named respondent. As the appellant was not dismissed by way of redundancy or otherwise by the first named respondent his appeal under the Redundancy Payments Acts, 1967 to 2007 and his claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fail.
As the appellant’s appeal derives from his purported dismissal on 21 December 2012, a time when he had not even begun to work for the second named respondent, his appeal under the Redundancy Payments Acts, 1967 to 2007 and his appeal and claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 against the second named respondent are hereby dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)