EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
James Pollard RP1210/11
UD873/11
MN993/11
- claimant WT355/11
against
AZ Dental Holdings Limited
- respondent no. 1
AZ Dental Holdings Limited
- respondent no. 2
AZ Dental Holdings Limited
- respondent no. 3
AZ Dental Holdings Limited
- respondent no. 4
PWS Direct Ltd
- respondent no. 5
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
UNFAIR DISMISSALS ACT, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr. B. Kealy
Mr P. Trehy
heard this appeal at Dublin on 20th May 2014, 8th September 2014 and 2nd December 2014.
Representation:
Claimant: Mr Micheal Corry, Con O'Leary & Co, Solicitors, 6 The Mall,
Leixlip, Co Kildare
Respondent: LK Shields, Solicitors, 40 Upper Mount Street, Dublin 2 on 20th May 2014 and 8th September 2014.
At the outset of the hearing the claims under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the Organisation of Working Time Act, 1997 were withdrawn.
The decision of the Tribunal was as follows:
The claimant commenced employment in March 2005 in the role of dental products carrier. His duties included the receipt from the UK offices of packages for delivery in the Republic of Ireland to dentists and dental clinics. His employer provided him with a car and tax, fuel, and insurance costs were discharged by the employer.
His employer was UK based and also initially had a Dublin based office. The claimant subsequently worked from his home. The UK based company also had a trading name. The claimant’s understanding during his tenure was that he was employed by the first named respondent.
A firm of accountants acted as agents in Ireland and looked after the payroll. They operated at the second named respondent’s address. The claimant’s payslips and P60s cited the first named respondent as his employer. He took his instructions from LH in the UK office.
At no time during his tenure was the claimant made aware of a transfer of undertaking taking place. He had never been consulted in relation to same.
In or around September 2010 the claimant’s brother (M) informed him that he was being let go. His brother had just received a telephone call from LH in the UK based office who asked him to pass the message on to him.
He felt he had no option but to deem himself either dismissed or made redundant. He was not furnished with a P45.
The claimant has not secured alternative employment.
LF gave evidence that his office provided a payroll bureau for the first named respondent. He was never advised of a transfer of undertaking occurring. He never was asked to incorporate a company P.
There was no appearance by or on behalf respondents 1-4. However, DC gave evidence on behalf of a Group who operate dental practices in the UK. The Group had a number of entities and the first named respondent had been a member of that Group. While the first named respondent had traded in Ireland for some time the assets and business were sold on to a company (P) and an Asset Purchase Agreement was drawn up. This occurred in late 2001.
The Tribunal heard evidence from the claimant in this case concerning his dismissal from his employment.
Determination
Based on the evidence heard on 8th September 2014, the Tribunal was satisfied that none of the respondents numbered 1 to 4 were the claimant’s employer at the date of his dismissal. In those circumstances, the Tribunal finds that these respondents (numbered 1 to 4) have no case to answer and dismisses the claim against them.
The Tribunal considered and acceded to the claimant's representative’s request to join the 5th named respondent to the proceedings and the appeal against the 5th named respondent was heard on 2nd December 2014.
Pursuant to the hearing of 8th September 2014, a further T1A was issued on behalf of the claimant as against respondent 5. Having duly served the T1A on respondent 5, there was no appearance by or on behalf of the respondent. The Tribunal proceeded to hear this claim as against respondent 5.
The Tribunal, being satisfied that the respondent was properly on notice of the hearing, finds based on the uncontroverted evidence, that the claimant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:
Date of birth:
Date of commencement: 1 March 2005
Date of termination: 31 December, 2010
Gross weekly pay: €338.46
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
The claim under the Unfair Dismissals Act, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)