UD366/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                      CASE NO.

Michael Walsh (claimant)                                                                                    UD366/2015

Against

Direct Sportswear Limited T/A Unit 235 The Square Level 2

(respondent)  

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath B.L.

Members:       Mr. A. O'Mara

                        Mr J. Jordan

heard this claim at Dublin on 5th April 2016

Representation:

_______________

Claimant(s) :                Mr. Joseph Burke, McCartan & Burke, Solicitors, Iceland

                                    House, Arran Court, Smithfield, Dublin 7

Respondent(s) :           No appearance by or on behalf of the respondent            

The determination of the Tribunal was as follows:

The Tribunal has carefully considered the evidence adduced by the claimant, together with the written submissions forwarded on behalf of the respondent employer.

The claimant makes the case that he was unfairly selected for redundancy in or around July of 2014 and in particular he gave evidence that his selection arose out of a personal difficulty that the Managing Director (Mr. MC) had with him.

The claimant had worked with the respondent company since 2002. The claimant was out on an extended sick leave in November of 2013. The claimant opted to come back to the workplace in July of 2014 and it is accepted by the Tribunal that the claimant’s return to the workplace was abrupt and not anticipated. The claimant gave evidence to the effect that Mr. MC declared that he could not continue to work with the claimant and that as he had in effect absorbed the claimant’s work, the claimant was redundant.  

At all times, the claimant says that his positon was not in fact made redundant and that there was always the option of suitable alternate employment open to Mr. MC. The claimant’s return to the workplace on Monday 21^st July was the claimant’s last day in the workplace as he was put on garden leave for his notice period.

^{Mr. MC wrote to the claimant on the 25th} July 2014, confirming that it was his intention to make the claimant redundant after the expiration of the notice period and the claimant was advised that he would be paid his full outstanding annual leave entitlement together with the redundancy payment on the date of the termination of his employment.   It is noted that in the letter of the 25^th the respondent anticipated that the date the said final payments would be made was the 8^th September 2014.

In fact the final annual leave entitlement payment and the redundancy payment were not received until the 30^th October 2014 (and in this regard the Tribunal had sight of the relevant payslips).

In these circumstances, the Tribunal finds as a matter of law and of fact that the claimant was quite entitled to consider himself an employee until such time as he received his final payments and this reliance was given further certainty by the accompanying P45 supplied by the employer which gave the date of cessation as the 30^th October 2014.

The Tribunal will therefore disregard the subsequent attempt made by the employer to backdate the date of cessation of the employee to the 8^th September date as an attempt to render the claimant’s application under the Unfair Dismissals legislation as falling outside the stipulated time limit of six months.

The Tribunal notes that the RP50 was never signed by the employee claimant herein.

The Tribunal therefore finds it has the jurisdiction required to hear this case.

Having regard to the substantive issue of whether or not the claimant was unfairly selected for redundancy, the Tribunal finds that there is no evidence to suggest that the respondent acted fairly or reasonably in this regard. There is no evidence of a financial downturn or of a redundancy programme being implemented and the Tribunal has to accept the unchallenged evidence of the claimant that it was a personal dislike of the claimant by the MD that led to his selection for redundancy.

The Tribunal therefore finds the claimant was unfairly selected for redundancy and in acknowledging a previous payment of a lump sum of €15,696, the Tribunal awards a further €20,000 compensation for the loss of the claimant’s employment.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)