EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP96/2014
APPEAL(S) OF:
Richard Whyte
against
Colm Lynch T/A East Coast Angling
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran BL
Members: Mr. C. McHugh
Ms. M. Mulcahy
heard this appeal in Dublin on 23 April 2015 and 2 June 2015
Representation:
_______________
Appellant(s):
Mr. Gavin McCormack BL instructed by
Eleanor Kelly & Co., Solicitors,
Drogheda,
Co. Louth
Respondent(s):
Ms. Lauren Tennyson BL instructed by
Mr. Barry McAlister, John P. Prior & Co. Solicitors
Cogan Street,
Oldcastle,
Co. Meath
A redundancy appeal was lodged against an individual (hereafter referred to as CL) but CL’s representative argued that CL was not the correct employer but that the appellant should have sued the transferee of a transfer of undertaking.
The appellant’s representative stated that the appellant had worked in a Drogheda pet business for 6.5 years from July 2007. There had been changes of ownership of the business. The appellant would get a P45 on a Friday and go to work on the following Monday. However, the appellant was ultimately interviewed by SM (who had bought the business from CL) and not the appellant but the appellant’s co-worker got employment.
The appellant gave sworn testimony. Having started in July 2007 the appellant went part-time in 2010. WS was his employer then. In August 2012 CL took over. The appellant had done twelve hours per week before that. He had worked full-time from July 2007 to January 2010 and then part-time to spring 2012. He worked two to four days per week for CL. Ultimately, CL said he was selling the business and gave the appellant a P45. The appellant’s employment ended on 31 January 2014. CL sold up that day. The appellant’s co-worker got his job.
Under cross-examination, the appellant confirmed his date of birth as 5 October 1982 but denied that re-applying had been discussed with him. CL had been his third employer. He re-applied but did not get the job.
Giving sworn testimony, CL said that he took over in August 2012. The business involved retail of pet products. CL bought the business “lock, stock and barrel”. The appellant was an employee.
January 2014 came. CL had other business concerns in Navan. A rep had come into the shop. CL had been told of SM. They had met in December 2013. CL decided that he would sell. SM could get a lease for nearly five years. CL “was to transfer the whole lot” to SM. CL told the Tribunal that it was SM’s issue to deal with employees.
The appellant’s representative stated that CL had no documentation. The respondent’s representative submitted that CL was not the correct employer from the end of January 2014.
The Tribunal gave consideration to if SM could be joined to the case under Section 39 of the Organisation of Working Time Act, 1997, even if the respondent’s representative thought this would be out of time. She argued that the appellant accepted that there had been a transfer and that all liability had been assumed. She said that it was unfortunate that the other employee had got the job.
The Tribunal said that it wished to see the agreement. The appellant’s representative said that the appellant had been let go on the day before the transfer and requested that SM be attached. The Tribunal wished to hear what SM said.
The respondent’s representative told the Tribunal that CL had said that the agreement was a handwritten one.
The Tribunal declared that it wanted all three sides to be present at the next hearing when the Tribunal would decide as to joining a party and avoiding injustice. The Tribunal said that it would resume to hear submissions as to why someone should or should not be joined.
On 2 June 2015 the Tribunal was told that the appellant’s solicitor had written to SM but that SM was not in attendance. The respondent handed the Tribunal a copy of the agreement
The agreement was not regarded as anything formal. SM had not come into it in any definitive manner. After the appellant and his representative were given time to confer it appeared to the Tribunal that SM was not a party to the redundancy appeal.
Determination:
The appellant claimed that his employment, which commenced in August 2007, ended by reason of redundancy at the end of January 2014. His average gross weekly pay was €200.00.
Having considered all the evidence, both oral and written, and, in particular, having examined the transfer agreement, the Tribunal was satisfied that the appellant was entitled to redundancy in the prescribed form and that the respondent is liable.
Under the Redundancy Payments Acts, 1967 to 2007, the Tribunal finds that the appellant is entitled to a redundancy lump sum based on the following details:
Date of commencement: 15 August 2007
Date of termination: 31 January 2014
Gross weekly pay: €200.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)