EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                 CASE NO.

Raymond Cullen -claimant                                                                            UD1007/2012

MN299/2013

against

Paddy McGee (Wexford) Limited -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms D. Donovan B.L.

Members:        Mr. J. Browne

                        Mr. F. Dorgan

heard this claim at Wexford on 19th March 2014

Representation:

Claimant: Mr. Adrian Twoomey, Advokat Compliance Limited,

Merrythought House, Templeshannon, Enniscorthy, Co Wexford

Respondent: Ms Claire Mc Gee C/O Paddy McGee (Wexford) Limited

Background:

The respondent is a construction company. The claimant worked in the respondent company as a foreman.  

The claimant contends that the respondent routinely failed to pay him on time for almost the last two years of his employment. When he approached his employer to resolve the issue regarding his pay he was told that he was being made redundant. There was no process of consultation in relation to his dismissal. There were no fair procedures.   He was not given any notice nor pay in lieu of notice.

Respondent’s case:

The Tribunal heard evidence from the owner (PMcG) of the respondent. He explained that the claimant did call to him one evening regarding his pay. He was behind with pay because he was waiting payment from work that had been done, he offered the claimant to work a three-day week but the claimant refused. The claimant wanted to be paid redundancy. The claimant told him that he wanted to finish working and to be paid a redundancy payment.   He told the claimant that he could not afford to pay him a redundancy sum. The claimant then asked him if he would sign a redundancy form.   The claimant returned with a redundancy form about six days later.

He said he was experiencing financial difficulties and had made some other employees redundant but he did not offer to make the claimant redundant.  He said that when he made employees redundant they had a chat about it, it was a small friendly outfit.

In cross-examination the witness agreed that the company had not given a contract of employment or grievance process documents to the claimant. He accepted that he had difficulty in paying the claimant on time. However the claimant did not have this difficulty on a weekly basis. Regarding the time when the claimant approached him in the office the claimant asked to be paid redundancy.

He also employed two of the claimant’s brothers one of whom was made redundant a year prior and the other who was on lay off and who sought redundancy a week or so after the claimant.

He did ask the claimant to work his notice period but the claimant refused. The witness explained that he told the claimant that he was under pressure money wise and he would have money for the claimant in a few days and the claimant told him that would be of no use to him and he was finishing up.

The Tribunal heard evidence from Ms McG for the respondent.

Claimant’s case:

The Tribunal heard evidence from the claimant. He explained that he had a conversation with someone in the office about money. He was told that it was a matter for the owner. He phoned that owner and arranged to meet with him. He met the owner and told him that he needed to be paid and that he was the sole earner in the house, i.e. his wife was not working. The owner told him that he did not have his pay and that he might have to let him go. The claimant was “in shock” at this. The owner told him that he was in financial difficulty and he told the owner that he knew that was the situation but that he needed to be paid.  

No alternatives to redundancy were discussed.     The owner told him “I may let you go” so the claimant took this as being sacked.   He did not ask for redundancy.   He said why would he leave when he needed a job.

The claimant gave evidence of his efforts to mitigate his losses.   He said he did not secure a job until April 2013.

The claimant was cross-examined.   He denied that he asked for redundancy.   He denied that he was offered a three-day week.

Determination:

Having considered the evidence of the parties adduced at the hearing the Tribunal finds that there is direct conflict between the claimant and the respondent as to whether the claimant was made redundant by the respondent or whether the claimant requested the respondent to make him redundant. Therefore it falls to the Tribunal to determine this issue.   In determining this issue the Tribunal disregarded the evidence of Ms McG in so far as it corroborated the evidence of the respondent P McG or where it was hearsay.

If the claimant was made redundant the Tribunal must examine the reasonableness or otherwise of the conduct (whether by act or omission) of the respondent in effecting the redundancy.  

On the balance of probabilities the Tribunal determines that the claimant sought to be made redundant.   The Tribunal so determines for the following reasons:-

1. That although the respondent clearly had a need to effect redundancies and had in fact made some employees redundant he was trying alternatives such as a three-day week and lay-offs in an effort to avoid redundancies.

2. The claimant’s job was uncertain due not least to the irregular payments of his wages and was becoming untenable. He was aware that redundancy was a possibility and most likely decided to pre-empt it.

3. The fact that the claimant’s brother who was on lay-off was not made redundant and the fact that he sought to be made redundant by the respondent within a matter of days of the claimant’s redundancy.

4. That although redundancies were a distinct possibility there was no other redundancy within the claimant’s pool of selection until about nine months after the redundancy of the claimant.

5. Importantly, that the claimant, although stating he had been shocked, appeared to take issue more regarding the manner in which the redundancy was effected.

Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.

The claim under the Minimum Notice and Terms of Employment Acts 1973-2005 was conceded by the respondent and the Tribunal awards the claimant an amount of €2,932.00 being pay in lieu of four weeks’ notice based on a weekly salary of €733.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)