RP808/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

RP808/2014

APPEAL(S) OF:                                                                                           

Daniel T Toal                                         

 - appellant

against

Aurivo T\A Connaught Gold

 - respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms B. Glynn

Members:     Mr T.L. Gill

                     Mr T.J. Gill

heard this appeal at Sligo on 28th September 2016

Representation:

Appellant(s) : Ms Elaine Coghill, Anne Hickey, Solicitors, Wine Street, Sligo

Respondent(s) : Mr Terry Macnamara, Ibec, Quay Street, Donegal Town, Co Donegal

The decision of the Tribunal was as follows:-

JM, production manager, gave evidence of his role with the Respondent’s dairy. He had employed the Claimant in various roles as a general operative. The Claimant worked at weekends while he was in college and also during the busy summer months. On 9^th May 2014 the Claimant informed JM he was going Spain on holidays the following week. JM was annoyed as it was a busy time and he was expecting the Claimant to act as cover for the fulltime workers’ holidays. The procedure in the dairy was to make management aware of summer holiday plans in January. The Claimant was paid up to 17^th of May and also received his five day holiday pay entitlement.

It was not until the very end of May that JM became aware that the dairy was to close the following July. While he believed the Claimant had taken an extended holiday he was not surprised that the Claimant never returned to work after his holidays largely due to the awkward situation the Claimant had left him in by going and also because word had broken of the dairy’s imminent closure. JM had no recollection of having a conversation with the Claimant’s father, who also worked at the dairy, regarding the Claimant’s return.

TK, head of HR for the Respondent company gave evidence of the decision to close the dairy and move to a more modern site in Donegal. Negotiations with the employees’ unions regarding the redundancy packages followed. An agreement was reached .The first TK heard of the Claimant’s request for a redundancy package was in late July 2014. TK was surprised as he firmly believed the Claimant had left the dairy and his contract had been ‘repudiated’ by virtue of taking a considerably longer period than his holiday entitlement permitted. In cross examination TK rejected the idea that the Claimant’s holiday had been agreed with his supervisor as the latter did not have the authority to approve such a period of leave. The Claimant had bought a ticket for his holiday before asking for permission to leave. TK had no knowledge of a letter sent to the Claimant confirming his redundancy.TK found it odd that such a letter would have been issued as it was the Claimant himself who had voluntarily left.

The Claimant gave evidence of working weekends and summer months in the dairy for four years. On 9^th May he went to JM and told him he was going on holidays. JM wasn’t impressed but said he’d sort something out. When the Claimant returned, the dairy had closed down. He disputed that the date on the P45, 24^th of May, was his termination date.

AT, father of Claimant, gave evidence of how he obtained employment for the Claimant in the dairy. He would ask JM if any roles were available for the Claimant when he was off from college. With regard the Claimant’s return from Spain, AT met JM and asked if there was any work for the Claimant.AT also gave evidence of receiving of a letter to his house regarding the Claimant’s redundancy entitlement but said that he had destroyed it soon after. AT and the Claimant had a chat with the shop steward regarding the Claimant’s redundancy entitlement.

Determination

The Tribunal has carefully considered the evidence adduced and is satisfied that, on the 17^th of May, the Claimant voluntarily left his position at short notice. The evidence given to the Tribunal was that he was “heading to Spain”. No evidence was given in respect of the timeframe in which he would remain in Spain but it is clear from the evidence before the Tribunal that it was for a period well in excess of his holiday entitlement. It is further clear from the evidence given at the Tribunal and by his Manager that as the timeframe involved was for a period well in excess of his holiday entitlements, he was, in effect, resigning from his position.

The Tribunal also noted that it was some eight weeks later that the Claimant made any enquiry to the Respondent Company regarding his position.

The Tribunal are of the opinion that the Claimant, in effect, resigned his position from the day he left the Respondent Company on the 17^th May 2014 and accordingly his claim under the Redundancy Acts 1977 to 2007 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)