RP30/2014, MN37/2014, WT8/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                 CASE NO.

Syun How Phang – appellant                                                             RP30/2014                                         

                                                                                                            MN37/2014

WT8/2014

Against

Pulau Pinang Malaysian Restaurant Limited – respondent

Under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms J.  McGovern B.L.

Members:       Mr D.  Peakin

Mr. J. Dorney

heard this appeal at Dublin on 27th February 2015

Representation:

_______________

Appellant(s) :             In person

Respondent(s) :          Company Director

The decision of the Tribunal was as follows:-

Dismissal was in dispute in this case.  The respondent company operated a Malaysian restaurant which ceased trading on 30^th November 2013.  The owner gave evidence that the appellant had worked for him since 2007.  The appellant worked 20 hours per week as per his student visa.  From 2010 the appellant started travelling frequently including a five-week trip to Malaysia when his mother died.  The respondent did not pay him holiday pay due to his frequent absences.  He contended that the appellant left at the end of October 2013 as he had secured alternative work. 

The appellant gave evidence that he always asked permission to seek additional work at Christmas.  In 2013 he secured a job in a shop for the Christmas period.  The owner had told him he was welcome to work the other job.  The contract offered a minimum of 4 hours per week.  He disputed that he finished at the end of October.  He contended that he returned from a trip on 2^nd November and worked for three more shifts while he was training in the other job.  His employment with the respondent ended on 9^th November 2013.  The owner told him that as he had another job he did not have to work at the restaurant.  The owner did not say the restaurant was closing on that occasion.  He asked for work for Christmas but the respondent then said he was closing the restaurant.  He went to the restaurant the following week and asked about notice and redundancy.  He was not paid notice.  The owner said he should wait for his redundancy payment and that his accountant would send documentation to him, but he did not receive anything.  His P45 stated his termination date was 30^th October 2013. 

The owner stopped paying him holiday pay in 2010 as he said the restaurant was not doing well.  He always sought approval in advance for his unpaid leave.

Determination:

There was conflicting evidence in this case and on balance the Tribunal finds that a redundancy situation occurred and that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following information:

Date of Commencement:       15^th March 2007

Date of Termination:              9^th November 2013

Weekly Gross Pay:                 €173.00

This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period. 

The Tribunal awards the appellant €82.20 in respect of outstanding paid leave under the Organisation of Working Time Act, 1997.

The Tribunal also awards the appellant €692.00 (six hundred and ninety-two euro) in respect of 4 weeks’ pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)