EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Aidan McDonnell UD1449/2013, PW423/2013
against the recommendation of the Rights Commissioner in the case of:
Ecomondis Ireland
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O' Carroll-Kelly B L
Members: Mr T. O' Sullivan
Mr S. O' Donnell
heard this appeal at Dublin on 13th January 2015
Representation:
Appellant : Mr Michael Corry, Con O'Leary & Co, Solicitors,
6 The Mall, Leixlip, Co Kildare
Respondent : Ms Yvonne Cajkowski, Group corporate solicitor, EcoMondis
Grag Avenue, Clondalkin Industrial Estate, Dublin 22
This case came before the Tribunal by way of an appeal by the former employee against a recommendation by a Rights’ Commissioner references r-132082-ud-13/EOS and
r-130115-pw-13/EOS
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is involved in the production and supply of waste derived alternative fuels. It frequently deals with cement factories. It employed the appellant in April 2011 as an operations’ supervisor based on their premises in southwest Dublin. A human resource manager told the Tribunal that due to trading and operational difficulties several employees including the appellant were laid-off in October 2012. That decision was made in conjunction with the operations’ director. On 7 November 2012 the company’s chief executive officer wrote to the appellant informing him that his lay-off was to be extended into the following month. This witness issued and signed an RP9 form to the appellant dated 10 Dec 2012.
Due to an ongoing investigation with the Environmental Protection Agency (EPA) the respondent sought and acquired the input of the appellant for less than one day’s work in December. On 8 January 2013 this human resource manager received an email from the appellant querying payment to him for that month. In response a colleague emailed him stating that the respondent was aware that his lay-off had expired. In a subsequent development later that month the operations’ director spoke to and then met the appellant. During their encounter on 23 January that director presented the appellant with a document headed Separation Agreement. The appellant neither signed that agreement which included a wavier clause nor accepted the payment associated with it.
This witness stated that at all times the appellant’s position within the company was not filled either during his lay-off period or subsequent to it. In addition there was no provision in the appellant’s contract of employment which allowed payment to him during such periods. The payment proposals offered to the appellant included 6 weeks’ salary and mileage allowance. According to the witness that salary was a goodwill gesture and the appellant had not claimed for any mileage.
Appellant’s Case
The appellant managed general operatives and the handlings of materials on site. He was disappointed at being laid-off in October 2012 and maintained there was no justification for it as there was plenty of work. He indicated his lay-off was connected with the company’s activities which came under investigation by the EPA. As part of that investigation he reported for work for one day in December and received a salary for that whole month. As a result of his queries about his work status with the respondent the witness met his director in January. He was displeased with his offer of termination. In refusing it the appellant believed his job was still there as full production was evident with the respondent.
The appellant was unable to state his social welfare status for the relevant period and did not furnish the Tribunal details of that status when requested to do so.
Determination
Having heard and considered the adduced evidence the Tribunal finds that a genuine redundancy situation existed in this case. The appellant was kept informed of developments concerning his position within the company. The respondent’s selection and application of the redundancy situation was fair and transparent. Accordingly, in allowing the appeal under the Unfair Dismissals Acts, 1977 to 2007 the Tribunal upsets the recommendation of the Rights’ Commissioner in this case.
It is well established that employers do not have a statutory obligation to pay their employees during a lay-off period. The Tribunal therefore upholds the recommendation of the Rights’ Commissioner under the Payment of Wages Act, 1991.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)