EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Brian O'Shaughnessy RP422/14
- appellant
Against
Windsor Motors
- respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr J. Goulding
Mr P. Trehy
heard this appeal at Dublin on 20th August 2015 and 20th October 2015
Representation:
Appellant: Mr. Gavan Mackay, Spelman Callaghan, Solicitors, Corner
House, Main Street, Clondalkin, Dublin 22
Respondent: Mr. Grahame Pickett, SIMI, 5 Upper Pembroke Street, Dublin 2
The decision of the Tribunal was as follows:-
Appellant’s case:
The appellant commenced employment on 20th September 1973 as an apprentice mechanic. After completing his apprenticeship there was a strike and lock out and he was furnished with his P45 on 2nd May 1979. He secured alternative work in his brother’s company.
In around February 1980 MOR asked him to return to work. He thought he was returning to work for the same respondent at that time. HRJ was his manager until early 2012 when AOF took over. AOF never spoke to him. There was a complaint against him of his shoddy work. AOF continued to harass him about his work. The appellant was very upset. AOF asked him to put an extra effort into his work.
Towards the end of 2011 the appellant asked TM for a redundancy package.
In early 2012 AOF was replaced by RON in his role. Around this time NOS assumed the role of new dealer principal. NOS had met the appellant when NOS was a car cleaner.
In mid 2012 RON asked the appellant if he was still interested in a redundancy package. Around this time some young mechanics were being made redundant. The appellant was interested if the money was right. He was told he would only receive statutory redundancy.
Subsequently, RON told the appellant he had overstepped the mark and asked him to hold on for six months to a year and that the respondent would revert to him. The initial offer would be €10,000.00. The appellant was disappointed. He felt the respondent was messing him around. However, he was happy to remain working in the company but at the same time he felt he was being left out of the loop and was not trained up on computers. Instead younger mechanics were receiving computer training. The appellant was stressed out at this time.
Before the appellant left on holidays in August 2013 he was offered a package. The final offer was €30,000.00 and because he refused a going away do the respondent offered him €250.00 in lieu of that. He was also given a 04 car. He was unable to seek advice from his union at the time. The package referred to his 33 years in the company. He queried that as he thought he had 41 years service. He signed the company’s agreement document on 18th October 2013 without having taken legal advice. He received the agreed package in two instalments, one on 31st October 2013 and the other on 1st April 2014.
Respondent’s Case:
AOF was in the role of After Sales Manager during the appellant’s tenure. He had a friendly cordial relationship with the appellant. There had been issues with the appellant’s work during his tenure. While he had been spoken to he was not disciplined. He had been provided with training. He had never bullied the appellant and was unaware of any complaints being made by the appellant regarding this.
PH is Service Manager. Each mechanic is provided with a Tablet which is a simple device with drop down boxes. The car service details are entered into this device by each mechanic. All mechanics including the appellant were fully trained on the operation of this device. The appellant reported to him and PH had a good working relationship with him. Around 6th April 2011 PH met with the appellant. The appellant wanted to be made redundant.
On 8th March 2012 PH again met with the appellant who enquired about redundancy.
PH had never disciplined the appellant.
RON is Office Sales Director. He got on very well with the appellant. He met the appellant on 17th May 2012. During the course of that meeting the appellant said he did not want to see any of the young mechanics on completion of their apprenticeships being let go and that he wanted to be made redundant. RON explained to the appellant that there was no option on the table for redundancy.
On 21st August 2012 the witness again met the appellant. The appellant wanted to see if anything could be done for him as he felt “it was a young man’s game” and he wanted to leave. RON told him that he would talk to NOS but that he did not think the company would offer him anything as they did not want him to go. He felt the appellant was putting words in his mouth and interpreting things differently in that he understood it to be a redundancy package that could be on offer. RON never said any offer would be a redundancy package and he explained to the appellant how a redundancy situation could arise. At the conclusion of the meeting RON told the appellant he would speak to NOS about the matter. RON made NOS aware that the appellant wanted to leave. NOS said to leave it with him.
NOS is Dealer Principal. He became aware the appellant was seeking a redundancy package in around April 2012. He met the appellant in July 2012. The appellant wanted to be made redundant. NOS told the appellant that no redundancy situation existed but he would see if the appellant could be offered an ex gratia payment in the region of €10,000.00 but could not guarantee it. In mid August 2013 NOS again met the appellant. The final offer to be paid to the appellant was €15,000.00 in the current financial year and a second payment of €15,000.00 to be paid in the following financial year. The appellant said he would think about it and speak to his wife. NOS suggested to the appellant that he seek advice. He went off on holidays for six weeks. At the beginning of October 2013 he returned and enquired if it would be possible to keep the company car. This was agreed. The car was worth €4,000.00. The car was serviced and a new set of tyres were fitted. The respondent wanted to organise a going away party for the appellant. The appellant did not want a going away party but instead asked for €250.00. Again this was agreed. Both NOS and the appellant shook hands. By letter dated 15th October 2013 NOS confirmed the terms of the ex gratia payment to be paid to the appellant. The appellant took this letter home and returned and signed the agreement on 18th October 2013.
The appellant has been replaced in his role.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this two day hearing.
The Tribunal prefers the evidence of the respondent and accepts that the appellant was looking for a package, to exit his employment, for a number of years.
It was made clear to the appellant that any package was not a redundancy as this would mean that the respondent could not fill his position.
When the respondent eventually agreed to offer the appellant an ex gratia payment in mid August 2013 he was given six weeks within which to consider while he was on holidays with his wife and he indicated that he was going to seek advice from his trade union.
In his own evidence the appellant admitted that he made contact several times with his trade union but spoke to different people each time. There was no indication that he did not understand his statutory entitlements or did not have an opportunity to be advised of these. He subsequently negotiated improved terms to the ex gratia payment offered on 7th October 2013. When he told his employer again that he was going to seek further advice he finally signed the agreement on 18th October 2013 having taken it home for three days, his last day of employment being 31st October 2013.
The second payment under the agreement was paid on 1st April 2014 and a few days later a solicitor’s letter was received by the company claiming statutory redundancy and an increased amount of money. The Tribunal notes that the appellant had requested a particular letter allowing him to collect social welfare after the end of his employment and was going to take advice on 7th October 2013. He was clearly well versed in his statutory entitlements and the niceties of his situation.
The Tribunal was referred to Section 51 of the Redundancy Payments Acts and in particular to Hurley v the Royal Yacht Club [1997] ELR 225.
In the circumstances the Tribunal finds that the respondent was entitled to believe the appellant had taken adequate advice and in the circumstances there was no redundancy situation and the employment ended by mutual agreement with an ex gratia payment.
The appeal under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)