MN857/2012, RP1085/2012, WT362/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                            CASE NO.

Clint Walsh                                                                                                    MN857/2012

                                    - appellant                                                                 RP1085/2012

                                                                                                                      WT362/2012

against

GMG Mechanical Services Limited

                                    - respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. E. Daly B.L.

Members:     Mr. D. Morrison

Mr. M. McGarry

heard this appeal at Letterkenny on 3^rd April 2014 and 22^nd May 2014 and 10^th September 2014

Representation:

Appellant:   Nicholas Ruck & Co., Solicitors, 2, Anvil Court, Killybegs, Co. Donegal

Respondent: IBEC, 3^rd Floor, Pier One, Quay Street, Donegal Town,

Preliminary Issue:

It is common case that that the appellant commenced work with the respondent on 1^st January 2008.

The respondent’s representative contended that the appellant’s apprenticeship ended on 4^th July 2012 and as they were unable to offer him full time work advised him by letter on 20^th June of two weeks’ notice. This terminated the employment within one month of the apprenticeship ending.

The respondent produced a letter from FAS, dated 4^th July, advising that the final Phase 7 had been updated and providing results.

The appellant’s representative confirmed that the appellant did receive a letter on 20^th June but also produced a letter from FAS confirming the apprenticeship ended on the 5^th July, bringing the appellant outside of the one month’s requirement under the Redundancy Payments Act, by one day.

He also advised the Tribunal that the appellant had not been paid his minimum notice requirement and was also owed holiday pay.

A FAS (SOLAS) employee advised the Tribunal that the results may have been uploaded on the computer system on 4^th July. The results would then be uploaded to FETAC and that would be available on 5^th July. That may explain the reason why both dates were used by FAS (SOLAS).

Determination on preliminary issue:

The claimant’s employment with the respondent came to an end on the 4^th July 2012 which was the last day of the claimant’s final phase of the on-the-job training in respect of his apprenticeship with the respondent. The respondent was entitled to rely on the letter dated 4^th July confirming that the apprenticeship ended on that day.

The Tribunal finds that an apprenticeship cycle is deemed to be complete when an apprentice has served the minimum timeframe from the date of registration and has successfully completed all of the alternating on-the-job and off-the-job phases of the apprenticeship.   Accordingly, the claimant had completed his apprenticeship on 4^th July 2012 and from that date was merely awaiting certification from FÁS.  

Section 7(4) of the Redundancy Payments Act 1967 provides as follows:-

" Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment."

The “end of the period” of the apprenticeship is not defined by the Act. While there is previous authority by other divisions of the Tribunal which hold that the end of an apprenticeship is the date which the employer receives a certificate to that effect, those determinations do not bind this Tribunal. The facts in each case should be considered carefully and separately.

As there is ambiguity in the section 7(4) of the Act, a purposive interpretation of the section should be applied. The purpose of section 7(4) of the Redundancy Payments Acts is to ensure that employers can train apprentices without the consequence of having to pay redundancy to that employee after the apprenticeship ends even though he/she may have served in the apprenticeship for a period of more than 2 years.  

In light of this purpose, the Tribunal finds that the respondent in this instance was entitled to believe the apprenticeship had come to an end on 4^th July 2012. To find otherwise in this case would be to bind an employer to a date that is outside of their control, namely the date that the certificate issues.     

The Tribunal therefore does not have jurisdiction to hear the case and must dismiss the appeal under the Redundancy Payments Acts, 1977 to 2007.

On the second day of the hearing it was agreed by both parties that the appellant was entitled to 2 weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and 13.1 hours annual leave under the Organisation of Working Time Act, 1997. The Tribunal therefore award the appellant the sum of €877.50 under the Minimum Notice and Terms of Employment Acts and the sum of €l47.38 under the Organisation of Working Time Act, 1997.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)