RP278/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                CASE NO.

Edel McCool                                                                                                  RP278/2013

-        Appellant

against

Rory O’Connor T/A Garvan & O’Connor

                                    -   Respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O’Carroll-Kelly BL

Members:     Mr. D. Morrison

Mr. M. McGarry

heard this claim at Castlebar on 23^rd October 2014

Representation:

Appellant: John Gordon, John J. Gordon & Son, Solicitors, John Street, Ballina, Co. Mayo

Respondent: The respondent in person

Determination:

The Tribunal have carefully considered all of the evidence adduced during the hearing and the documentation submitted. The Respondent stated that he approached the claimant and one other stating that he was offering voluntary redundancy or a new pay structure amounting to 1/3 of fees from the conveyancing files. The claimant expressed a wish to remain on in her position and her colleague accepted the offer of voluntary redundancy. The claimant stated that she did not accept the new 1/3 payment arrangement but was considering it. She stated that she needed to take advice on the matter and needed to establish from the files exactly the sums of money which could potential be earned. The respondent stopped the claimant’s direct debit after the payment made on the 26^th July, 2012,

From the bank statements exhibited it is clear that the claimant’s weekly remuneration was €428.00 up to the 26^th July, 2012 thereafter she received nothing until the 25^th September 2012. On that date, €1,712.00 in respect of four weeks holiday pay was lodged to her account. The Respondent conceded that the money lodged was in respect of holiday pay. The claimant was not in receipt of any remuneration between 26^th July, 2012 and the 19^th December, 2012. Section 11 (2) of the 1967 Act states as follows:

(2) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than one-half of his normal weekly remuneration, he shall for the purposes of this Part be taken to be kept on short-time for that week.

The Tribunal are satisfied that the factual situation that existed at the material times satisfies Section 11(2) of the Act.

By letter dated the 3^rd October 2012 the claimant wrote to the respondent stating “I wish to accept your offer of redundancy of the 16^th May, 2012” “Please arrange to have my RP50, P45 and redundancy lump sum available for me four weeks from today” The respondent conceded that this letter was a request for redundancy. The Claimant wrote again on the 19^th December, 2012 requesting her redundancy. Section 12 (1) of the 1967 Act states as follows:

2. —(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

The Tribunal are satisfied that the letter of the 3^rd October, 2012 and the 19^th December, 2012 satisfy Section 12(1)

The Respondent argued that the Claimant had accepted the alternative payment situation. The Tribunal note that no remuneration other than one lodgement of €1,712.00 in respect of holiday pay was made to the claimant for a period of approximately five months. Regardless of the alternative pay structure, the factual situation that existed at the material time satisfies the criteria of the act and the tribunal finds that the claimant’s position was made redundant.

Therefore the Tribunal awards the appellant a lump sum redundancy payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria.

This award is made subject to the claimant having been in insurable employment, during the relevant period, in accordance with the Social Welfare Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)