EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Wieslaw Czerniak RP949/2012
against
Patrick Joseph Fitzgerald t/a Fitzy Transport
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr. T.L. Gill
Mr. J. Flavin
heard this appeal in Limerick on 11 July 2014
Representation:
_______________
Appellant(s):
Mr. Mike Macnamara for Mr. Gerard Kennedy, SIPTU,
Liberty Hall, Eden Quay, Dublin 1
Respondent(s):
Ms. Tracy O’Brien, Michael O'Donnell, Solicitor,
Main Street, Rathkeale, Co. Limerick
The decision of the Tribunal was as follows:-
A redundancy lump sum award was sought but it was contended on behalf of the respondent that some client sites were closed to the appellant because of his attitude such that a reduced amount of work could be given to him. It was submitted that the appellant was aware of what had happened and ultimately left his employment with after seeking new employment.
Giving sworn testimony with the aid of an interpreter, the appellant confirmed that he sought a redundancy payment. It was put to him that his hours had been reduced because customers complained about him, that there had not been a redundancy situation and that his job was still there. The appellant disagreed. Specifics of complaints were put to him. He said that he always did his best. Regarding speeding, he said that he might have been a little over the limit. He denied that PF (his boss) had offered to speak to unhappy customers to sort out situations and that PF had been good to him even outside work when it came to helping him with regard to personal transport.
The appellant did not deny having taken a successful case against the respondent regarding his terms and conditions of employment but, when it was put to him that he had flung his contract back at PF, he replied that it had not been right. The Tribunal was told that he was not obliged to sign his contract. He stated that he had got no response when he served redundancy documentation on the respondent. When it was put to him that PF had texted him to say that there was work there for him he could not recall this. The appellant said that he did not have much English.
Giving sworn testimony, PF said that he had told the appellant of complaints about him and had offered to try to resolve them. The appellant was shown every complaint letter. PF offered the appellant English lessons. The appellant practically threw the contract back at PF. PF said that the recession had damaged his business and that drivers like the appellant were his salespeople.
Giving sworn testimony, NF said that, when customers made complaints, the appellant got them and they were discussed with him but that the appellant had wanted to be let go. She had said no and had not even understood the redundancy documentation he was submitting before he walked out. NF confirmed that some customers would not have the appellant.
In cross-examination NF was asked if work could have been dispersed (so that the appellant might still have work). She replied that the respondent could be working solely for a particular customer for an entire week.
Determination:
The appeal under the Redundancy Payments Acts, 1967 to 2007, fails because it was not established to the satisfaction of the Tribunal that there had been a redundancy situation as distinct from a disciplinary issue.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)