EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Martin Sheahan Junior UD1560/2013
- appellant
against the recommendation of a Rights Commissioner:
Mr. Binman (In Recievership)
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. W. O’Carroll
Ms. S. Kelly
heard this claim at Limerick on 12 May 2015
Representation:
Claimant: Glenn Cooper, Dundon Callanan, Solicitors, 17 The Crescent, Limerick
Respondent: Mr. Kristian Douglas BL instructed by:
Eversheds Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-124841-ud-12/GC.
Background:
The complaint is that the respondent unfairly dismissed the appellant when the respondent purported to make him redundant. The respondent (in receivership) has been partly sold and the appellant is a family member of the former company. He was managing director at the time of receivership and was made redundant along with all family members by way of a letter in April 2012. It was for the Tribunal to consider if the appellant was an employee at the time of the receivership.
Determination:
The Tribunal carefully considered the evidence and submissions made by both parties and concluded that the appellant was not an employee for a number of reasons, as outlined by the chairman on the day of hearing. The main reasons considered were the appellant’s social insurance contribution class, his significant shareholding in the company and his signed personal guarantee.
According to the Appellant’s evidence to the Tribunal his shareholding in the company was in the region of one third or 33.3 % of the shareholding of the respondent company in receivership
The single most persuasive factor in the view of the Tribunal to support the view that the respondent was not an employee was his personal guarantee to financial institutions and banks over the debts and financial obligations of the respondent. Such an arrangement .is, in the view of the Tribunal, fundamentally inconsistent with a claim that the appellant was merely an employee of the respondent company. A personal guarantee engages the guarantor – in this instance the appellant – in obligations of a contractual nature, which imply responsibility for the long to medium tern financial affairs of the company such as to remove the guarantor from a position of subordination to the management / proprietorship of the company.
The Tribunal therefore upholds the decision of the Rights Commissioner and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)