UD132/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD132/2014

CLAIM(S) OF:                                                                                                      

Jonathan Kenyon  (claimant)                

Against

Macxchange Limited T/A Compu B  (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr M. Carr

                     Mr J. Flannery

heard this claim at Dublin on 10th March 2015

Representation:

_______________

Claimant(s) :                Mr. Stephen O’Sullivan B.L instructed by Lyons Kenny, Solicitors, 57 Fitzwilliam Square, Dublin 2

Respondent(s) :           In Person

The determination of the Tribunal was as follows:

Preliminary issue

A preliminary issue was raised by the respondent at the outset of the hearing submitting that the claimant did not have the required one year of continuous service with the respondent in order to make a claim, as per Section 2 (a) of the Unfair Dismissals Act.

The respondent (GM) told the Tribunal that the claimant was hired as a Business to Business Education Manager on 5^th December 2011, although the claimant submitted that his start date was 28^th November 2011. The respondent is in the computer business selling ‘Apple’ products with a staff of approx. 80 employees. This was the claimant’s first employment contract with the respondent.   On 26^th November 2012, the claimant was called to a meeting in a coffee shop whereby his first employment contract was terminated and he was then re-hired on 4^th December, 2012. During the second contract, the claimant mostly worked from home and did not have an input into the running of the respondent’s store as per the first contract. The respondent indicated that as the company was not happy with the claimant’s performance in that he was not meeting his targets, the second employment contract was terminated on 31^st July, 2013.

In cross-examination, the respondent stated that although the company did have a document regarding targets, he did not have it at the hearing. The respondent also indicated that he did not have the claimant’s sales figures to show the Tribunal. The respondent denied that the claimant was fired and re-hired so as the claimant would not have one year’s service. In reply to the Tribunal, the respondent stated that the difference between the first and second contract was that the claimant no longer managed staff. According to the respondent, the claimant accepted the new work arrangement and contract. The respondent could not explain why the second contract was not signed by the claimant and that it had come from the HQ office.  

Giving evidence, the claimant told the Tribunal that at the meeting with GM in November 2011, GM told the claimant that he would be taking over the claimant’s role. GM also told the claimant that the company was not happy with his performance and that he was not meeting targets. The claimant indicated that there were no targets set for him. In 2012 the claimant’s sales were in excess of one million euro. When the claimant was told he was being fired and re-hired, he felt he had no option but to continue working for the respondent as he had a mortgage and a family to support. With the new arrangement from December 2012, the claimant worked about 40% from home, 10-15% in the store and the rest of his time ‘on the road’.

In cross-examination, the claimant denied he was given a second contract of employment with the respondent, arguing that his employment with the respondent had been continuous from 28^th November 2011 until 31^st July 2013.    

Determination

Having considered the evidence adduced the Tribunal finds that the claimant had continuity of service with the respondent from the date of his commencement on 5^th December 2011, until the termination of his employment on 31^st July 2013.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)