RP282/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

RP282/2014

APPEAL OF:                                                                                               

Ann Marie Shannon - appellant        

Against

Fitzgerald Power Limited, T/A Fitzgerald Power Chartered Accountants    - respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                     Mr F. Dorgan

heard this appeal at Waterford on 10th June 2015.

Representation:

Appellant:       In person

Respondent:    In person

The decision of the Tribunal was as follows:-

Respondent’s Case:

The respondent is a firm of accountants. The appellant was employed under a three year training contract which commenced on 31^st May 2010. During this period the appellant was provided with financial assistance for examination courses and examination fees.   This contract ended on 29^th May 2013 and DP, a Director of the respondent company verbally offered the claimant a six month contract with an end date in November 2013. The reason for the six month contract was to see if there would be a turnaround in the business.

In September 2013 the appellant commenced a period of sick leave. DP had been advised not to contact the appellant during her illness. He received one medical certificate in December 2013 which stated that the claimant would be absent until further notice and had been backdated to September 2013.

On 10^th February 2014 DP wrote to the appellant and asked her to contact him as she had not been in touch with the respondent. He was aware that there had been informal communication from the appellant within the office.  When he spoke to her the following day he told her that her contract was not being renewed due to economic circumstances and that he had to let her go.

Appellant’s Case:

The appellant gave evidence. A tripartite agreement was entered into on 30^th May 2010.

When the appellant became ill she contacted J, a supervisor in the business. She was told to get better and to stay in contact. She also remained in touch with M during her illness.

During a meeting with DP in June 2013 she enquired about where she stood in the company. DP’s response was ‘let’s not look beyond November 2013 – we will discuss matters in November 2013’. At no time was she aware of a six month contract existing. The first time she heard of the six month contract was when she spoke to DP on 13^th February 2014. That day he informed her that her job was gone due to economic circumstances. She has not been furnished with a P45 or a P60.

Since the termination of her employment the appellant has been unable to secure alternative employment.

Determination:

The appellant’s Training Contract with the respondent came to an end on the 30^th May 2013. Her dismissal did not follow on the expiry of the term of her Training Contract. Instead, the appellant remained in employment with the respondent. She went out ill in September 2013 and was informed on the 13^th February 2014 that her employment with the respondent was terminated.

It was the respondent’s case that the appellant was on a Fixed Term Contract from May 2013 to November 2013 and that her employment actually ceased in November 2013 but that it was felt in November 2013 that it would be inappropriate to contact her while she was ill. The appellant disputed in evidence that she was on a Fixed Term Contract from May 2013 to November 2013 and had advised the Tribunal that she had every expectation of returning to work after her illness. No documentary evidence to support the existence of a Fixed Term Contract was forthcoming before the Tribunal.

It was the respondent’s evidence that, from November 2013, there was no relevant work for the appellant to do.

It is the opinion of the Tribunal that the Respondent has failed to rebut the Presumption of Redundancy.

Accordingly the Tribunal awards the appellant a redundancy payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:

Date of Commencement:            19^th April 2010

Date of Termination:               27^th February 2014

Gross Weekly Wage:                      €442.31

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)