EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Michael Caulfield
-claimant RP653/2013 MN469/2013
against
Whelan Electrical/Gerry Whelan Electrical T/A Whelan
Electrical -respondent
Orla Whelan T/A Whelan Electrical
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Mr. F. Dorgan
heard this claim at Waterford on 27th November 2014
Representation:
Claimant: Mr. Patrick Kavanagh, Technical Engineering & Electrical
Union, 83 Lower Yellow Road, Waterford
Respondent: In persons
Background:
There are two named respondents, abbreviated W E and O W E. For the purpose of this determination they will be referred to as W E.
The claimant contends that he was employed as an electrician by the respondent (W E) registered with revenue as (Named entity referred to as OWE), on a maintenance contract
W E were subcontracted into HTT to HFS, the principal contracted maintenance provider to work on maintenance alongside full time HTT Maintenance Personnel.
HFS were paid for this service by HTT and HFS then in turn paid W E.
As a result of a dispute between W E and HFS in relation to non-payment of wages by W E to the E in their employment on the HTT site, W E were withdrawn / removed from the HTT site on Friday 8th March, 2013.
A dispute arose due to wages again going unpaid for the period end of February / early March 2013.
As a result, a meeting was held in the Boardroom of HTT with representatives of HTT itself, the TEEU, HFS and W E on 6th March 2013. At this meeting, GW gave an undertaking to pay the two weeks arrears due to his electricians the next day — Thursday 7th March 2013. This money went unpaid and W E were no longer on site after Friday 8th March 2013.
Due to the fact that the TEEU Members (including claimant) were now unpaid from W E, the Members were balloted for Industrial Action on 8th March 2013 and notice of Industrial Action was served to commence on 12th March 2013.
Due to notice of Industrial Action being served, on 1 1 th March 2013, the Members (including claimant) were paid their arrears up to Friday 8th March 2013, as confirmed by W E therefore the Industrial Action did not go ahead.
On 12th March 2013 the TEEU wrote to the Company outlining that they had been informed by HTT that W E would be gone from the site and would not be returning. In the same correspondence, the TEEU enquired from W E on behalf of its Members (including claimant) :
- was there any other work for their Members to keep them in employment?
- if there was no such employment, would the Company be issuing them with a lay-off notice for the Social Welfare or would the be issuing them with a form RP50 for redundancy purposes.
- could they confirm in writing that they had paid the wage arrears up to 8th March 2013.
The Company replied that the arrears had been paid up to 8th March 2013 and that they would be issuing the members with letters for the Social Welfare due to the fact they had no other work for them.
By the 15th March 2013, the Members (including claimant) had still not received a letter from the Company in order for them to claim Social Welfare and the TEEU emailed W E requesting same and the Company replied that they would have them that day (Appendix 5).
On 16th March 2013, as the Company had still not yet issued letters to our Members (including claimant) for Social Welfare, the TEEU again contacted W E stating that as the Members (including claimant) were still Employees of W E and that they either issue the letters for the Social Welfare or pay the wages of the Members (including claimant) for the week Monday 11th to Friday 15th February 2013 and any following week until the letters of lay-off are issued.
On 21st March 2013, the TEEU wrote to W E as the Members (including claimant) had informed the Union that they had received a further weeks' pay on 20th March enquiring was this pay for week 11th to 15th March 2013 or was it their weeks' pay in arrears to which there was no reply.
On 25th March 2013, the TEEU wrote to W E to state that as the Company had refused to correspond with either the Union or the Members (including claimant) involved in relation to their current circumstances, the Union had referred the issues to the appropriate state bodies for adjudication.
W E replied on 27th March 2013 refuting the correspondence.
On Saturday 30th March 2013 the Members involved (including claimant) commenced employment directly with H F S as new starts, back on maintenance at HTT.
The respondent contends that the dispute arose when their company was not being paid on time by HFS. They told their employees that they could not pay them until HFS paid monies that HFS owed their company.
The employees contacted their Union and HTT were apprehensive that there was going to be Industrial Action and therefore HTT decided that they did not want W E employees on site.
The respondent made several attempts to try and resolve the issue with HTT and HFS but HTT and HFS refused to engage with the respondent. A person from the respondent spoke to the principal (GH) of HFS and GH told the person in vulgar language that they would not be paying the respondent monies owed them because GH would have to “take–on” the respondent employees and any future accruing redundancy pay. The respondent learned at a later time that HFS had employed the respondent previous employees and that the employees were working on the HTT site as usual.
The Tribunal heard evidence from both the claimant and respondent.
Determination:
The claim under the Unfair Dismissals Acts, 1977 to 2007 was withdrawn at the outset.
Before a Tribunal can make a Redundancy Order it must be satisfied that a Claimant’s employment has actually terminated.
In this instance the Tribunal is of a view that the Claimant acted prematurely in taking up employment with a Third Party and that it was unreasonable of him, in the particular circumstances that prevailed at the time, to conclude that his employment with the Respondent was at an end.
The Claimant is not entitled to a Redundancy payment. The claim under the Redundancy Payments Acts, 1967 to 2007, is dismissed.
While it is not necessary for the Tribunal to determine whether there was a Transfer of Undertakings to the Third Party Employer (HFS) in order to arrive at a determination on this Claim, it is the Tribunal’s observation that the manner in which matters proceeded are highly suggestive of there being a Transfer of Undertakings to the Claimant’s new employer (HFS).
The Tribunal makes no award under the Minimum Notice and Terms Of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)