RP82/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                    CASE NO.

Michael Brady

- appellant                                                                                                              

                                                                                                                               RP82/2014

against

Michael O'Driscoll

- respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr. P. Casey

Ms. P. Doyle

heard this appeal at Cork on 26th August 2014

                                    and 15th January 2015

Representation:

_______________

Appellant(s) :       In Person

Respondent(s) :   Mr David O'Keeffe, P J O'Driscoll's & Sons, Solicitors, 73

                            South Mall, Cork City

Appellant’s Case

The appellant gave evidence that he commenced his employment as a court messenger with the then Sheriff for County Cork on 23rd July 1987 and that this employment transferred in 1995 to respondent, the former Sheriff for County Cork under the Transfer of Undertakings Regulations 1980. He told the Tribunal that on 13th February 2013 he received what he referred to as a letter of undertaking from the respondent informing him that his employment would transfer to his successor by virtue of the Transfer of Undertakings Regulations 2003. He said he was led to believe that he would be transferred to the new County Sheriff and at no time was it indicated to him that he might have difficulty with the change in employer.

He said that there was essentially no consultation with the respondent rather he was just given the letter two days before his employment with the respondent ended. The appellant said the respondent retired on 15th February 2013 and he could no longer employ him.

He said the respondent gave him his P45 in April 2013.

Respondent’s Case

There were no witnesses for the respondent and accordingly no evidence was presented to the Tribunal by the respondent. The legal representative for the respondent submitted to the Tribunal as follows:-

1. That the case against the respondent was a separate case from that being taken by the appellant against the current Cork County Sheriff and should be dealt with separately. The Tribunal acceded to this application.

2. That the respondent was not liable for the redundancy of the appellant by virtue of a transfer of undertakings from the respondent to the current Cork County Sheriff.

Determination:

On the uncontested evidence of the appellant the Tribunal finds that whereas there was a transfer of undertakings the appellant was made redundant by the respondent on 15th February 2013.  

The Tribunal finds this is supported by the following:-

1. On 13th February 2013 when the respondent informed the appellant that his employment would continue by virtue of a transfer of undertakings the respondent could not have known whether a transfer of undertakings would occur or not as this would depend on how his successor planned to run the office of Sheriff – all that he could have known at this point was that the contract would be awarded to a successor.

2. In circumstances where the appellant is well beyond what is considered to be the normal retirement age, despite the respondent keeping him in his employment does not mean that the appellant had a contractual entitlement regarding the continuation of his employment that should be transferred to the current Cork County Sheriff. There was no evidence from the respondent by way of a contract of employment or otherwise on this issue. Therefore the appellant’s employment ended when the respondent retired.

3. The relevant information could not have been provided on 13th February 2013 or within the statutory 30 days as the respondent did not know at that time who his successor was to be and would not have had the necessary information   However, he could have furnished some of the information required to be provided under regulation 8(1) within the statutory timeframe) and he should have at least discussed with the appellant that there may be difficulties as to whether he had a contractual entitlement, as opposed to an arrangement between the respondent and the appellant, to continue employment well beyond normal retirement age.

4. The issuing of a P45 by the respondent to the appellant in April 2013 indicated an acceptance by the respondent that the appellant had not transferred to the current County Cork Sheriff.

Accordingly, the claim under the Redundancy Payments Acts 1967-2007 succeeds and the appellant is entitled to a redundancy lump sum based on the following criteria:

Date of Commencement:       23 July 1987

Date of Termination:              15 February 2013

Gross Weekly Pay:                 €227.00

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)