EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP418/2014
APPEAL OF:
Michael Browne
Appellant
against:
Hugh Hourican T/A The Boar’s Head
Respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O’Leary BL
Members: Mr. J. Horan
Mr. P. Trehy
heard this claim at Dublin on 9th July 2015
Representation:
Appellant: Mary Kirwan, Mary Kirwan Payroll Bureau Service, Borris In Ossory, County Laois
Respondent: Ms. Mary Seery Kearney BL instructed by: David H. Christie & Gargan Solicitors, Unit 2, Stewart Hall, Parnell Street, Dublin 1
The decision of the Tribunal was as follows:
Background:
The respondent operates a public house, the appellant was employed as a Barman from the 1st March 2003 until his employment terminated on the 5th November 2013. However it should be noted the P45 stated his date of termination was the 28th June 2013. The staff consisted of the owner (HH), his wife, the appellant and one other Barman (B). The owner’s son also worked there on occasions.
The appellant and the owner (H) gave conflicting sworn evidence in this matter.
Respondent’s Position:
HH gave evidence. The claimant was absent on sick leave from February 2013. HH kept in contact with the claimant’s siblings. There seemed to be no return date for the claimant to return to work so H contacted him, the claimant, on a number of occasions. The claimant said he was ready to return to work in August 2013. HH requested a return to work certificate from the claimants Doctor. The claimant said he could not get it and requested H get his paperwork together. They met two days later, the claimant gave HH the keys to the premises, they shook hands and left.
When asked, HH said he hired another Barman (D) to work part-time to cover the claimant’s shifts while he was out sick. HH, his wife, D and sometimes, HH’s son now covered the hours the claimant used to work.
Appellant’s Position:
The appellant gave evidence. He refuted he had been absent from work on sick leave since February 2013. He had been paid during this time and up until June 2013. (The respondent provided payslips to this affect). He agreed he was absent on St. Patricks Day as he had attended Beaumont Hospital.
On the 4th July 2013 he was admitted to hospital for a scheduled appendectomy and returned to work from the 9th July to the 14th July when he went out sick. He had received medical certificates but did not submit them to h as he had not requested them. The claimant told the Tribunal that he had received a payment from H in August 2013 but this had not been a loan HH had said it was. He tried to contact HH on a number of occasions but to no avail.
On the 8th November 2013 he and HH arranged to meet off-site. HH said he could not take him back, requested the keys of the licenced premises, handed him a cheque for €1,500 and a copy of his original P45 which had a termination date of the 28th June 2013. The claimant told the Tribunal that he later found out the original P45 had been sent to his family home in Laois some days previous to the 8th November 2013.
On cross examination he never told HH he was resigning or requested his paperwork. He told the Tribunal that the meeting in November was to discuss, he thought, his return to work. He again refuted he had been given a loan of money by HH in August 2013.
When asked by the Tribunal who, he thought, had worked his shifts when he was on sick leave and after his termination of his employment he replied that he had no idea but thought it could be D.
Determination:
The Tribunal have carefully considered the conflicting evidence of both parties in this matter.
It appears from the evidence that the position the appellant held continued to be in existence after the appellant’s departure and therefore a redundancy situation did not exist.
The appeal under the Redundancy Payments Acts, 1967 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)