EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP111/2014
APPEAL(S) OF:
Fergus Kelly - appellant
against
Ashlor Hotels Limited T/A Dooly's Hotel - respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr J. Goulding
Mr P. Trehy
heard this appeal at Tullamore on 10th April 2015
Representation:
_______________
Appellant(s) : Mr. Sorcha Houlihan, D.A. Houlihan & Son, Solicitors, John's Place, Birr, Co. Offaly
Respondent(s): Ms Nora Cashe, Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Determination
The Tribunal heard evidence that the appellant was employed by the respondent company as a security doorman from October 1991. His normal working week consisted of three nightly shifts per week. This was reduced to two nights per week without consent in November 2012 and further reduced without consent to one night per week for a four week period from 3 November 2013 to 1 December 2013. There was a dispute between the parties as to whether the appellant was offered an additional single nights employment on 29 November 2013 for a teenage disco.
The appellant stated that he was not offered this night’s work. The respondent’s former General Manager who was the only person to give evidence on behalf of the respondent stated that he assumed that the security manager would have offered this single night’s shift to the appellant because of seniority but he could not confirm to the Tribunal that this was actually the case. In those circumstances the Tribunal finds that the appellant was not offered the single night’s shift.
In any event, even if he was offered this shift, this work was not work that he was employed to do and accordingly does not comply with the provisions of section 11 (3) of the Redundancy Payments Acts, being different in hours from the work he had consistently done for over 20 years.
The Tribunal was disappointed by the vagueness of the terms and conditions of employment of the appellant put forward by the respondent.
Given the above circumstances the Tribunal finds that the appellant was entitled to serve an RP9 form on the respondent, having been reduced in pay to less than half his normal weekly remuneration for four consecutive weeks by virtue of the failure of the respondent to provide him with sufficient working hours. The respondent contended that its letter of 17 December 2013 constituted counter notice of the RP9 form dated 12 December 2013. However that letter, which was the only written communication from the respondent within seven days of service of the RP9 form, and is therefore the only document that could constitute counter notice, failed to contain a statement that liability to pay redundancy was contested on the grounds that within four weeks of 12 December 2013 the appellant would enter upon a period of employment of not less than 13 weeks during which he would not be on lay off or short time any week.
Therefore the respondent failed to serve counter notice and accordingly the Tribunal finds that the appellant is entitled to a redundancy payment under the Redundancy Payments Acts 1967 to 2007 based on the following information:
Date of commencement of employment: 19 October 1991
Date of termination of employment: 6 February 2014
Gross weekly pay: €300.00
This award is made subject to the appellant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Act 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)