EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Gabriel Ruane RP159/2012,
MN174/2012
against
Bridie Lyons
t/a C Lyons Tractor Sales
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. W. O'Carroll
Ms H. Henry
heard this appeal at Galway on 30th April and 20th July 2015
Representation:
Appellant : Mr Shane MacSweeney, MacSweeney & Company, Solicitors,
Lismoyle House, Merchants Road, Galway
Respondent : Mr James Nerney BL instructed by
Gerardine C Costello & Associates, Solicitors, Unit 4A Oranmore Business
Park, Oranmore, Co Galway
The respondent contended that the appellant continues to be an employee. The appellant maintained that his employment ceased with the respondent no later than January 2012. His gross weekly wage with the respondent is deemed to have been €500.00 for the purposes of this case.
Appellant’s Case
The appellant commenced employment with the respondent, a small family run business in June 1990. The respondent presented him with his written terms and conditions in early 2012 - a document he refused to acknowledge or sign for various reasons. That document described the appellant’s position as a “store manager”. The appellant told the Tribunal he also had a sales role. By early summer 2011 the respondent had lost its agency for tractor sales. On 8 November 2011 the respondent terminated the appellant’s employment on grounds of alleged misconduct. The appellant appealed that termination.
In the latter half of December 2011 the appellant received a letter from the independent investigator who heard his appeal. As a result of the internal appeals procedure, the appellant was informed that the decision to terminate his employment was overturned, and that he was reinstated in his position effective from his date of dismissal. However, he was simultaneously suspended without pay pending the outcome of the matter being referred to An Garda Siochana. The matter rested there. However it remained a disputed issue between the parties.
The appellant stated that the respondent made all employees redundant by the end of December 2011. He produced photographs which had been placed at the respondent’s premises clearly stating and demonstrating that the premises were closed. The appellant claimed the said photographs were taken in April 2012 and had been posted on the premises since late December 2011. From late 2011 he stated that he had had no communication from the respondent. In February 2012 the appellant acquired employment elsewhere.
Respondent’s Case
The owners of the respondent business gave evidence that the business contained a workshop, a stores/parts section, and an office. In 2011 the owners met with their accountant and a review of each aspect of the business was undertaken. The accountant recommended that the stores/parts section of the business remain open as it was the only profit making part of the business. The owners accepted the advice and the workshop closed permanently in December 2011. A number of office staff and workshop employees were subsequently made redundant, but the stores aspect of the business, where the appellant was employed, remained open.
The Tribunal heard evidence that a sign was placed on the premises during the Christmas holidays 2011. A photograph of this sign was opened to the Tribunal. The sign stated “closed” and contact telephone numbers for the owners were provided for the parts section and the office. The owners, in evidence to the Tribunal, stated that this sign was removed in January 2012. The appellant, who was employed as stores manager, was suspended without pay at this time pending the outcome of a disciplinary matter. The owners gave evidence that they hired another employee known as (R) to assist them in carrying out the appellant’s duties while he remained on suspension. (R) then left in May 2012 when he secured alternative employment. He was not replaced and the owners continued to carry out the stores duties until the closure of the stores in December 2012.
The owners contended that the appellant was never dismissed and was never issued with a P45. They gave evidence that he secured alternative employment with an alternative employer in January/February 2012 while still an employee of the respondent. They claimed that he was not made redundant and that he had taken up alternative employment while his job was still in place, albeit while he was on suspension.
Determination
The Tribunal carefully considered all the evidence and submissions in this case. There was a conflict of evidence between the parties.
The Tribunal is satisfied that the business was winding down from late 2011. The respondent ceased trading on 21 December 2012. All of the remaining staff were made redundant with the exception of the appellant, who was reinstated as a result of an internal appeals process, effective from his date of dismissal of 8 November 2011. Simultaneously, and bizarrely, the appellant was suspended without pay. He was never in fact dismissed. If the appellant had not been suspended, he would have been made redundant. The store manager’s position no longer exists.
The Tribunal finds that the appellant’s redundancy claim succeeds and the Tribunal awards the appellant a lump sum payment under the Redundancy Payments Acts 1967 to 2007 based on the following information:
Date of commencement of employment: 1 June 1990
Date of termination of employment: 8 November 2011
Gross weekly pay: €500.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
No evidence was adduced under the Minimum Notice and Terms of Employment Acts 1973 to 2005. Accordingly this claim fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)