RP610/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

RP610/2013

APPEAL(S) OF:                                                                                

Frank O'Keeffe        - appellant                                 

against

City Post Limited  - respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. K.T.  O'Mahony BL.

Members:     Mr. D.  Hegarty

                     Mr. D.  McEvoy

heard this appeal in Cork on 9 October 2014

Representation:

_______________

Appellant(s):

             Mr. Noel Murphy, Independent Workers’ Union, 55 North Main Street, Cork

Respondent(s) :

            Mr. Brian Dolan, Peninsula Business Services, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3

Summary of Evidence

The appellant was seeking a redundancy lump sum payment in respect of his employment from 4 May 2001 to March 2013. The respondent’s position was that the appellant had resigned and that there had been no dismissal.

The appellant commenced employment as a legal courier with the previous owner of the business in May 2006 and in July 2011 he was transferred to the respondent under the transfer of undertakings regulations. The respondent delivers mail, leaflets and catalogues. The appellant had been working forty hours over a five-day week. The respondent dispensed with its depot in Cork and did not employ a supervisor there.

In February 2012 the respondent reduced the appellant’s work to 20 hours per week (four hours per day Mondays to Fridays) the appellant was not happy about it but worked the 20 hours. On 23 May 2012 the appellant wrote to the respondent’s HR manager (HRM) objecting to the reduction in his hours.   In July 2012 there was a further reduction to 12 hours per week. The appellant referred the reduction in his work hours to the Rights Commissioners Service under the Terms of Employment (Information) Act. In communications with HRM both in correspondence and meetings with HRM over the month of July 2012 the appellant indicated that he wanted to return to 40 hours, that he did not want the material being dropped at his home, that his current job of leaflet distribution was completely different to his original job and that he wanted redundancy. However he indicated that, depending on the implications for social (welfare) payments, he would be open to doing 20 hour per week.  HRM’s position at the meetings was that redundancy was not an option for the appellant.    

No payments were made to the appellant over a three-week period in October 2012. The respondent’s position was that the appellant had not returned the requisite documentation or GPS trackers to confirm that he had done the work and had not contacted the respondent to give an explanation. On 1 November 2012 HRM wrote to the appellant explaining why he had not been paid, identifying the warehouse for the collection of the material, setting out the work that was to be done and the requisite returns to be made to head office. In this letter the appellant was asked to contact the respondent by other means if he had a phone problem and he was provided with a new sim card for his mobile. Other correspondence, in a similar vein and seeking confirmation that he would do the work, was sent to the appellant on 11 November and 16 November 2012. The appellant described the respondent’s tracking system as “a waste of time” but he was using it although it had to be on all the time.

On 12 November 2012 the appellant posted Form RP9 to the respondent seeking a redundancy payment but got no reply. The respondent’s position was that while his hours had been reduced he had not been put on lay-off.                                 

On 20 November 2012, the appellant and other of the respondent’s employees drove to Dublin seeking their P45s and told the respondent they would not leave Dublin until they got them. HRM, who was in charge, would not speak to them. After a few hours the respondent called the gardai. The gardai advised her to provide the P45s and requested the employees to leave. HRM told the gardai that there were issues and redundancies would be coming up.  

The appellant was called to a disciplinary meeting on 17 December 2012 on grounds of his alleged failure to carry out his duties correctly and his alleged failure to carry out reasonable management instructions. It seems that only work methodology was discussed at this meeting.  

By letter dated 10 January 2013 the respondent’s financial controller (FC) informed the appellant that as of 14 January 2013 his hours were being increased to the original 40 hours per week and again set out the method for work and making returns to head office. In another letter of even date FC informed the appellant that he had not been paid for the first week of January 2013 because he had not shown for work after holidays and had neither given any prior notice to the respondent nor responded to its texts or calls to his mobile. The letter went on to state that such delays and failures negatively affect costs and jeopardise contracts. 

In a short letter dated 17 January 2013 the appellant replied saying that he had been away and that he would accept a forty-hour week. In letters dated 18 January, 25 January and 1 February 2013 to the appellant, FC referred to his failure to work the requisite 40 hours the previous weeks and asked him to confirm that he would work the 40 hours each of the following weeks. In another letter dated 24 January 2013 to the appellant, FC referred to his returns for the week ending 13 January 2013 and reminded the appellant to ensure that his GPS tracker was fully charged prior to commencing daily distributions or risk payment delay while his work was checked by phone. In addition, the appellant was instructed to present for training on correct documentation completion and on proper work practice.

On 13 February 2013 the appellant returned documentation and 2 GPS trackers to the respondent, stating that he had only been able to work on 24 January 2013 due to snow and ice.

The appellant’s position was that he never got 40 hours work in any week from the respondent. He disputed the distribution scheduler’s (DS) position that she sent texts every Friday about work for the following week and maintained that texts were only sent when work was available. DS’s evidence was that the respondent continually has work in Cork and when a courier does not report for work his work is rescheduled to another courier or contractor. Refuting this, the appellant stated that in any morning there might be one or two palettes of material for distribution or maybe none at all in the warehouse when he got there; he had been fortunate if he got two days’ work in a week.  However, he was not receiving due payment. DS’s evidence was that the respondent could not pay him when he did not turn up for work and he had become uncontactable. It was further submitted by the appellant that if materials had been sent to the warehouse in Cork it was not allocated to him.

The appellant’s position was that he was getting less and less work, the GPS signal was weak and the respondent was not paying him for the work done. He parked up the van outside a friend’s house and when it was stolen some time later he reported it to the gardai. The respondent’s position was that through its tracker system it was aware the van was not being used for over four weeks and when they found it, outside the premises they had formerly used in Cork, they took it back to Dublin.

Determination:

To be entitled to a redundancy payment under the Redundancy Payments Acts 1967 to 2007 there must be a dismissal.

There was a dispute between the parties as to the hours of work being made available to the appellant. The respondent’s position was that work was available for the appellant but the appellant maintained that he got less and less work towards the end and was not receiving pay.  

In his letter of 17 January 2013 the appellant indicated to the respondent that he would work 40 hours per week. However, the evidence is that the appellant failed to do so from that time. In FC’s letters of 18 January, 25 January and 1 February 2013 to the appellant,  FC referred to the appellant’s failure to work the 40 hours the previous weeks and asked him to confirm that he would work the 40 hours each of the following weeks. The appellant failed to make any response to the contents of these letters, either to deny the statement that he had not worked those weeks or to confirm that he would work 40 hours the following weeks. Having considered these salient facts and all the evidence the Tribunal, on the balance of probability, finds that the 40 hours were available to the appellant but he chose to leave the employment.  Accordingly, as there was no dismissal the appeal under the Redundancy Payments Acts, 1967 to 2007, fails.    

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)