EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Anna Sokolova RP1093/2012
- Appellant
against
J & P Brady T/A Spar
J & P Brady
- Respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr. N. Ormond
Mr J. Flannery
heard this appeal at Tullamore on 18th March 2014 and 22nd July 2014
Representation:
Appellant: Ms Joanna Kwiatkowska, 2 Doirin Alainn, Ballylynan, Co Laois
Respondent: Ms. Anne Marie Kelleher, Byrne & O'Sullivan, Solicitors,
Windsor Lodge, Edenderry, Co Offaly
Appellant’s Case
The appellant told the Tribunal that she was employed as a shop assistant by the respondent in their business from January 2008. When she first commenced employment with the respondent she worked approximately 39-45 hours per week over 6 days. In October 2010 this was reduced to 3 days per week. She regularly enquired about resuming her full time hours and was informed that they would have to wait and see.
During cross examination the appellant told the Tribunal that she did not receive a contract of employment from the respondent until she requested same in 2010. When she received the contract she backdated her signature to her commencement date.
In February 2012 she was informed that her hours would be reduced further. The appellant was very unhappy about this but continued to work for the respondent on the basis that when the recession lifted her hours would return to normal.
The appellant told the Tribunal that the respondent offered her an extra day of work per week, 3 days instead of 2, but the total hours over the 3 days would remain the same. The appellant told the respondent that she was leaving as she needed more money and full time employment.
Respondent’s Case
The respondent, JB, told the Tribunal that in October 2010 he spoke to the appellant and explained that things were very quiet and the deli operations were being reduced. The appellant told JB that she was not happy but she continued to work.
In January 2012 the respondent met with staff individually to inform them that hours of work would be reduced. The respondent told the appellant that another member of staff was leaving the employment and the appellant could take on her hours. The appellant refused this offer.
During cross examination the respondent told the Tribunal that the appellant’s hours were flexible and varied from 40 hours to 20 hours per week. Her start time also varied depending on whether it was a morning or afternoon shift.
JB told the Tribunal that the appellant’s earnings reduced from €400 per week to €300 per week in 2010. In 2012 it reduced further to €140 per week.
The Tribunal heard evidence from PB, the Respondent, who confirmed receipt of the RP9 form which he said was returned to the claimant with an accompanying letter.
Determination
Cuts were unilaterally imposed on all employees in 2010 as a result of the economic downturn. The Tribunal does not find that the appellant accepted the cut to an extent which would debar her from bringing a claim for redundancy on foot of the further cuts in 2012. The Tribunal, in particular notes the unsatisfactory nature of the written contract between the parties in that normal work hours were not specified and also notes that the appellant does not speak English as a first language and there was no written notification of cuts to the appellant, neither in 2010 or 2012.
In all of the circumstances the Tribunal finds that the normal weekly working hours of the appellant were established through practise in 2008 as being 39 hours and that this was cut to less than 50% in 2012.
Insufficient counter notice to the RP9 was provided by the employer. The Tribunal notes that part C of the RP9 form was not filled in and a letter sent to the appellant only specified that she would work on another day but did not specify that she’d be given hours more than 50% of 39 hours per week.
Therefore the Tribunal concludes that the appellant was made redundant through expiration of the RP9 and accordingly finds that the appellant is entitled to a redundancy payment based on the following criteria:
Date of commencement: 15 January 2008
Date of termination: 17 September 2012
Gross weekly pay: €381.42
From this amount the Tribunal deducts €500 for wasted costs of the employer on the first day of hearing.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)