ud1111/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                                                                                             CASE NO.

Brendan Stapleton,                                                                                                                                  

                                                                                                                                                   UD1111/2013

against

Fernwalk Traders Ltd (In Liquidation)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T O'Mahony B.L.

Members:     Ms M. Sweeney

                    Ms H. Kelleher

heard this claim at Cork on 1st December 2014

Representation:

_______________

Claimant:           Mr. Brian Long, Brian Long, Solicitors, Emmet House,

                                   Barrack Square, Ballincollig, Cork

Respondent:       Not present or represented

The determination of the Tribunal was as follows:-

Respondent’s case:

There was no appearance by or on behalf of the respondent. The Liquidator had advised the Tribunal by way of e-mail that he was not aware of the background to the claim and would not be in a position to defend it.  

Claimant’s case:

The respondent’s business was wholesale meat purchasing and re-sale. The claimant commenced employment as a book-keeper with the respondent in the summer of 2009. Only the managing director (MD) and the claimant worked in the office. In March 2010 the respondent decided to open up a van delivery service, where meat could be sold directly to butchers. This led to an increase in the hours of work for the claimant without having had any prior consultation or discussion.

Dealing with producers, the keeping of records, yield comparisons, production and traceability all become part of the claimant’s remit and he became stressed by it all. MD took on a van sales person who then became production manager but things did not improve for the claimant.

He told the Tribunal that the book-keeping/accounts position he was hired to do fell behind and he continued to have to increase his hours to cope with the changes in the business.

Towards the end of 2012 the claimant was concerned and felt very uncomfortable with the nature of the requests made of him, in order to generate capital, by MD, but he was told if it didn’t happen the business would have to close and people would lose their jobs prior to Christmas. He was under a lot of pressure. He again went to his doctor and got a sick certificate but MD told him he could not take sick leave. The situation continued to deteriorate and he sent a letter of resignation to his employer on 18^th February 2013. The managing director asked him to continue to work until he found a replacement and he agreed to remain until St Patricks Day. He was paid up and until 12^th April 2013. The respondent company went into liquidation on 17^th June 2013.

Determination:

The Tribunal is satisfied that the respondent was properly notified of the hearing. As this is a case of constructive dismissal the onus of proof rests on the claimant.

Based on the uncontroverted evidence of the claimant the Tribunal is satisfied that the employer’s unreasonable behaviour in imposing different duties and a heavier workload on the claimant justified the claimant’s resigning and claiming constructive dismissal. Accordingly, the claim under the Unfair Dismissals Acts, 1967 to 2007 succeeds.

As the company is in liquidation compensation is the appropriate remedy. Under 7 (1)(c ) of the Unfair Dismissals Acts 1977 to 2007 compensation may be awarded in respect of any financial loss attributable to the dismissal and further under subsection (3) financial loss includes the value of any loss or diminution of the claimant’s rights under the Redundancy Payments Acts. In the circumstances of this case the claimant’s employment would in any case have ended on 17^th June by virtue of the liquidation. Accordingly, his loss is for the period 12^th April 2013 to 17^th June 2013 which amounts to the sum of €5,641.81 and a sum equivalent to his loss of a redundancy payment based on the following criteria  

Date of Birth:                                            

Date of commencement of employment:   16 November 2009  

Date of termination of employment:          12 April 2013

Gross weekly pay:                                     €626.87

This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period. It should be noted that payments from the Social Insurance Fund are limited to a maximum of €600.00 per week.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)