EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Padraic Golden - claimant RP868/2012
UD1155/2012
MN720/2012
Against
Michael Welby Junior, - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 9th April 2014
Representation:
_______________
Claimant(s) : Ms Kate Kennedy BL instructed by Mc Loughlin & Co Solicitors, Headford,
Co. Galway
Respondent(s) : Purdy Fitzgerald, Solicitors, Kiltartan House, Forster
Street, Galway
Summary of Case
The claimant was employed as a JCB driver by the respondent from October 2002. The respondent’s business was totally dependent on work sub-contracted to him by the local authority. The claimant worked at various locations in Co. Galway including Ballinasloe, Oughterard and Moycullen. By late 2011/early 2012 the nature of the work had become less frequent and it became normal practice for the claimant to be employed on a week on/week off basis.
In January 2012 the claimant was offered a full-time position in Ballinasloe as there was no work available at that time in the Moycullen area. The claimant did not accept this offer as he understood that work in the Moycullen area would become available again. The claimant remained on lay-off from 20 January 2012 until 13 February 2012. He worked in Ballinasloe for a number of days in early April 2012 and also worked in Moycullen until 13 April 20012. By mid April 2012 there was no more work available in the Moycullen area and the Tribunal was told that the claimant was again offered a full-time position in Ballinasloe which he refused. The respondent gave evidence that the work resumed intermittently in the Moycullen area and he carried out that work himself. The claimant ultimately never returned to work after 13 April 2012 and the respondent stated that he was never dismissed and would not take up the offer of a full-time position in Ballinasloe.
Determination
The Tribunal carefully considered the oral and documentary evidence submitted at the hearing. In Particular the Tribunal notes the contents of the respondent’s letter to the claimant’s legal advisor dated 28 May 2012 which stated inter alia stated that the claimant was offered alternative employment on several occasions in Ballinasloe and to which the claimant replied that he wouldn’t go there. The letter went on to state that he (the respondent) “…wanted to be clear he was choosing no work as opposed to a full-time position…”.
In those circumstances the Tribunal finds that the claimant was not unfairly dismissed and his position was not made redundant. Accordingly the Tribunal dismisses the claims under the Redundancy Payments Acts 1967 to 2007, the Unfair Dismissals Acts 1977 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)