EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP57/2014
APPEAL(S) OF:
Jimmy Fisher
against
Panscape Partitions Limited
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Ms. M. Sweeney
Ms. H. Kelleher
heard this case in Cork on 1 May 2015
Representation:
_______________
Appellant(s):
Mr. Charles O’Connor, Charles O’Connor & Co., Solicitors,
Scarteen Street, Newmarket, Co. Cork
Respondent(s):
Ms. Emer O'Callaghan, Barry M O'Meara & Son, Solicitors,
18 South Mall, Cork
The decision of the Tribunal was as follows:-
Summary of Evidence
The respondent is involved in the building trade, mainly in internal building work. The recession had a severe effect on his business and his workforce reduced from around thirty-five to three employees. The worst years were 2011-2013. It was common case that following the ending of the appellant’s annual leave on 12 August 2013 he was laid off due to lack of work until 21 August 2013. He then worked up to and including Friday 13 September 2013.
It was the appellant’s position that nothing unusual occurred on 13 September. On Monday 16 September he phoned the respondent at 7.33am, 10.26am and 6.14pm enquiring about work. In the first two calls the respondent undertook to revert to him but did not do so. When the respondent still had no offer of work for him on his third phone call, the appellant asked if he should look for something else and the respondent replied, “You had better. I’ll have to let you go.” The appellant secured work, through O’Neill and Brennan agency, on a day to day basis on lower pay and he could be sent anywhere in the country. The appellant denied the respondent’s assertion that he told him on Friday 13 September that he would have work commencing on a big project on the following Wednesday. The appellant further denied that he told the respondent that he had a guarantee of two years’ work with the new employer.
It was the respondent’s position that on Friday 13 September 2013 he told the claimant to phone him on Monday and that he would try and sort something for the following Tuesday or Wednesday; he was expecting to put him back on a particular contract. While the respondent remembers talking to the appellant on the phone on 16 September he could not recall that there had been three phone calls from him. When the appellant told him he had work for one week in Clare, he told him to take it. When the appellant called on Friday, 20 September to collect his wages (pay was a week in arrears) he told him that the new employer could guarantee him work for two years and he asked for his P45. In cross-examination the respondent stated that the appellant was a first class worker and he would have him back anytime. The appellant called to the respondent to collect his holiday pay on 27 September. While the respondent had work available at that time he did not offer it to the appellant as he could not guarantee him two years’ work: he was not aware that the appellant was on a lower wage in the new employment.
On 13 November the appellant submitted Form RP77 to the respondent claiming a redundancy payment. In cross-examination the respondent’s evidence was that he did not make contact with the appellant following receipt of his redundancy claim because the appellant had made up his mind to leave.
Determination
There was a serious conflict of evidence as to how the appellant’s employment with the respondent came to an end. The Tribunal does not accept that the claimant voluntarily resigned from the employment. It accepts, on the balance of probability, the appellant’s evidence as to the contents of their 6.14 pm phone conversation on 16 September, and that although it was in response to the appellant’s question it constituted a dismissal by reason of redundancy.
Accordingly, the appeal under the Redundancy Payments Acts, 1967 to 2007 succeeds and the Tribunal awards the appellant a redundancy lump sum based on the following details:
Date of commencement: 24 January 2000
Date of termination: 16 September 2013
Gross weekly pay: €721.50
It should be noted that payments from the Social Insurance Fund are limited to a maximum of €600.00 per week.
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)