EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Robert Cruickshank MN61/2014
- appellant
RP65/2014
against
Post Publications Limited T/A The Sunday Business
Post
- respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr F. Cunneen
Mr. S. O'Donnell
heard this appeal at Dublin on 27th March 2015
Representation:
_______________
Appellant(s) : Bowler Geraghty, Solicitors, 2 Lower Ormond Quay,
Dublin 1
Respondent(s) : In person
Summary of Case
Upon the termination of his employment by means of redundancy in November 2013 the appellant received a redundancy payment of €13,416. This amount was calculated on the basis of the appellant commencing employment in March 2003 and ceasing employment in November 2013.
The appellant gave evidence to the Tribunal that he was an employee of the respondent company from June 1999 and thus should have received a redundancy payment based on his commencing employment from that date instead of March 2003. He accepted that he was registered for VAT purposes prior to March 2003 but following a visit from a VAT inspector he was informed that he should not be paying VAT. At all times of his employment from June 1999 onwards he took direction from the production manager and worked solely for the respondent company. When he ceased paying VAT in 2003 nothing changed in terms of his employment and his working hours remained the same.
Witnesses for the respondent gave evidence that while the appellant carried out work for the company prior to March 2003 this work was done in the capacity of him being a self-employed independent freelance contractor. In that regard the Tribunal heard evidence that he submitted invoices to the respondent company in respect of work carried out. He was not treated as an employee prior to March 2003 and received no holidays. There were regular invoices of varying amounts submitted by the appellant prior to March 2003 in respect of work carried out. The company accepts that he was a paid employee from 1 March 2003 until the termination of his employment by way of redundancy in November 2013.
The Tribunal heard further evidence that the appellant had an entitlement to six weeks’ notice of the termination of his employment. Witnesses for the respondent gave evidence that in an effort to prevent the closure of the business, an agreement was reached with all employees, including the appellant that the company would pay four weeks’ notice plus shares in the company under the Employee Share Ownership Trust (ESOT) to those employees who were made redundant. The appellant received such payment and a copy of the said agreement was opened to the Tribunal.
The appellant’s representative submitted that the appellant is entitled to six weeks’ notice in accordance with the provisions of section 4 (5) of the Minimum Notice and Terms of Employment Acts 1973 to 2005. He stated that the appellant cannot sign away his statutory entitlement and he is entitled to payment “in the coin of the realm”.
Determination
Based on the evidence adduced at the hearing the Tribunal is satisfied that the appellant was a self-employed contractor from June 1999 until March 2003. In that regard the Tribunal notes that prior to March 2003 he submitted invoices for his services, he was registered for VAT purposes and received no holiday entitlements. Accordingly the Tribunal is satisfied that he was paid his full statutory redundancy entitlement and his claim under the Redundancy Payments Acts 1967 to 2007 fails.
It appears to the Tribunal that the agreement reached between the parties during the examinership was based on the free and informed consent of the appellant with full knowledge of his legal rights. Furthermore the Tribunal is satisfied that the waiver by the appellant of his full statutory notice entitlement was on the face of it supported by adequate consideration. However, having said all that the Tribunal cannot look behind the agreement between the parties and consequently the Tribunal finds that it has no jurisdiction to hear the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)