EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD877/2013
CLAIM(S) OF:
Carmel Waddy
against
William O'Brien Plant Hire Limited
under
UNFAIR DISMISSALS ACTS, 1977 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 claim in Cork on 8 October 2014
Representation:
_______________
Claimant(s):
Mr. Denis Linehan, Denis A. Linehan & Co. Solicitors,
Rathgoggin South, Charleville, Co. Cork
Respondent(s):
Mr Conor O'Connell, Construction Industry Federation,
Construction House, 4 Eastgate Avenue, Little Island, Cork
There was no attendance by
Mr Paul Fisher, Pembroke, Solicitors,
30 North Wall Quay, IFSC, Dublin 1
The determination of the Tribunal was as follows:-
Preliminary Issue
The respondent contends that the claimant does not have one year’s continuous service such as to entitle her to make a claim under the Unfair Dismissals Acts, 1977 to 2007. It contends that her service with the respondent, which originally commenced 8 February 2007 was broken when she was made redundant on or around 21 March 2012. The respondent further contends that as her second period of employment with the respondent commenced on 25 June 2012 she did not have the requisite one year’s continuous service when her employment with it ended on 28 February 2013.
The claimant’s position was that her continuity of service had not been broken there had been a de facto continuity of her employment throughout the thirteen week period from late March 2012 to 25 June 2012, which was thereafter officially recorded.
Summary of Evidence
It was common case that in late February or early March of 2012 the claimant was called to a meeting with FW and WOB of the respondent. At that meeting, she was told that the respondent was in financial difficulties, that the business was going badly and that she was being made redundancy. AE (another employee) was to take over her work. The claimant understood the respondent’s position. She signed redundancy form RP50 on 21 March 2012. Her statutory redundancy payment amounted to €5,178.48. The claimant’s evidence that she was paid in full to around the end of March 2012 was not disputed. The claimant was put back on the payroll from 25 June 2012. The claimant’s payslip dated 18 July 2012 shows a monthly salary of €1,560.00 and back-pay of €1,170.00 and her payslip dated 17 August 2012 show a monthly salary of €1,560.00 and back-pay of €780.00. Staff are paid mid-month for the whole month.
Claimant’s Case
It was the claimant’s position that having taken holidays in March 2012 and having signed the redundancy form, FW asked her to return to work, as MX was experiencing difficulties with the extent of the workload she had taken over. FW explained to her that having paid her redundancy he could not put her back on payroll for thirteen weeks, that her pay would be reduced from €20 per hour to €15, that 50% of her remuneration would be paid through payroll as backpay once she was officially back on the books and in the meantime the other 50% would be paid in cash. She resumed employment on 26 March 2012, working three days per week as she had been doing prior to this. In lieu of cash she received a fill of oil worth €300.01in April.2012, new tyres to the value of €500.00 and was also given a payment of around €1,300.00 for her holidays. (There was a dispute as to whether this payment was made in March or later on.) The claimant was adamant that she worked three days per week from the time of her return to the employment in late March 2012 and disputed the respondent’s evidence to the contrary.
Respondent’s Case
The respondent company was in a very difficult situation. Four employees were made redundant in early 2012 including the claimant. FW took over credit control and AE took over the purchase ledger. FW was adamant that the claimant did not work for the respondent in the period between late March 2012 and the end of May 2012 when he invited her back for a few days to do reconciliations as the respondent’s financial year ends on 31 May. She was paid in the end of May for this work. She then resumed employment with the respondent from 25 June 2012. As the auditors were coming in July, he asked the claimant to work some extra days. The claimant works a two-day week and the extra ‘backpay” given to her in July and August 2012 was in respect of the extra days she had worked. FW denied having made cash payments to the claimant. His position was that he would not have given the claimant a redundancy payment of €5,178.48 in late March and continue to employ her. He further maintained that if the payments were in respect of backpay he would have paid the full amount due in one payment rather than two. FW accepted that the invoice for the oil fill was dated 30 April 2012 he had paid for oil for the claimant and paid her around €1,300.00 for holidays. He accepted that the company might have paid €500.00 for new tyres for the claimant’s car. Her salary payments are in respect of a two- day week.
Determination
The core issue which the Tribunal has to decide is what occurred in the period 26 March 2012 to 25 June 2012 viz whether the claimant did or did not work for the respondent during those 13 weeks. This finding will determine whether her service with the respondent is continuous. There was a complete conflict of evidence on the issue. The figures given in evidence do not conclusively prove either party’s position. Having considered the evidence the Tribunal accepts, on the balance of probability, the claimant’s evidence on the issue on the following grounds. The monthly salary of €1,560.00 as shown in the claimant’s July and August 2012 payslips (although outside the period in issue) exactly equates to a three-day week, as asserted by her. The respondent is under a statutory duty to maintain records of the days worked by employees. No such record was produced to the Tribunal to corroborate the respondent’s assertion that the claimant had worked 9.75 days overtime, thus entitling her to the payment of €1,170.00. The extra payments in July and August were described on the payslips as backpay not overtime. The payment of €300.01 by the respondent for a fill of oil delivered to the claimant during the 13 week period and paying €500.00 for new tyres for her car are indicative of some arrangement between the parties. The respondent’s argument that if the payments were in respect of backpay it would all have been paid in one instalment is not compelling in light of the financial circumstances of the respondent at the relevant time. Thus, the Tribunal finds that although the claimant was dismissed by reason of redundancy on or around 21 March 2012 she was re-employed on 26 March 2012. Such re-employment comes within the requirement of ‘immediate re-employment’ under section 6 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 thus rendering the claimant’s service continuous and entitling her to bring a claim under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further finds that clause 2.1 of the claimant’s contract of employment signed by both the employer and the claimant in October 2012 is void under section 13 of the Unfair Dismissals Acts 1977 to 2007 in that is inconsistent with and seeks to limit the provisions of the Acts for calculating continuity of service.
Accordingly, as the claimant’s service with the respondent is continuous from 8 February 2007 to 28 February 2013, the Tribunal has jurisdiction to hear her claim under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)