EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP933/2013
APPEAL OF:
Iwona Mrotek
- appellant
Against
1. T.J. Quinn - respondent 1
2. Hilda Hughes - respondent 2
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 appeal at Castlebar on 23rd October 2014 and 24th April 2015
Representation:
Appellant: The appellant in person
Respondents: First named respondent in person
Second named respondent - Ms Catherine McDarby, McDarby & Co Solicitors, Ballinrobe, Co. Mayo
First named respondent’s case:
This respondent operated the café in which the appellant was employed up to 24th December 2012. The respondent then closed the business for the month of January 2013 and during this time one of the employees took over the lease and began operating the business from February 2013. According to the witness the appellant had been absent on sick leave since Nov 2011 (although this was from Nov 2012 as per the appellant)
All the employees were issued with P45s with a cessation date of 24th Dec 2012 by this respondent and he told the Tribunal that it was difficult to contact the appellant as she had changed address.
The appellant came to this respondent in July 2013 looking to return to work and as the café was fully staffed he offered her a job in the nearby florist that he ran, on the same terms as in the café. The appellant refused this offer.
Appellant’s case:
The appellant commenced employment with the respondent in July 2007 and went out on sick leave from Nov 2012. During her absence she submitted sick certs to the 1st named respondent in the Florist shop and not to the new proprietor of the café. The appellant confirmed that she received a P.45 and on the 29 July 2013 stopped sending in medical certificates.
In July 2012 the appellant went to the café and asked the new owner for work but was told that no work was available.
Second named respondent’s case:
At the resumed hearing on the 24 April 2015 the second named respondent (HH) gave evidence. She had taken over the lease of the premises but not the business of the first named respondent. One employee transferred employment to her after she took over at the premises. The lease agreement did not include the transfer of employees. The lease was signed and dated on the 1 March 2013.
In November 2012 she took possession of the premises carrying out extensive work and expanding the food area. The witness recalled that in early February 2013 she spoke with the appellant and offered her employment.
The first named respondent told the Tribunal that no employee was paid redundancy as the premises seasonally closed down for one month. He offered the appellant alternative work which she declined.
In response to the Tribunal question regarding the seasonal closure by the first named respondent for one month it was submitted that this was the first year it closed for one month.
Determination
The Tribunal have considered the evidence submitted by all of the parties in this case. The first named respondent issued a P45 to the appellant on the 27 July 2013. The Tribunal heard evidence that no transfer of undertaking was included in the new lease agreement.
The Tribunal is satisfied that a redundancy situation existed and accordingly finds that the appellant is entitled to payment under the Redundancy Payments Acts, 1967 to 2007 against the first named respondent. The redundancy payment is based on the following criteria:
Employment commenced 1 July 2007
Employment ended 27 July 2013
Gross pay €161.00
Non Reckonable Service 1 November 2012 to 27 July 2013
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)