EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP174/2015
APPEAL(S) OF:
Deirdre Cullinane
Appellant
Against
Health Service Executive, Waterford Communities Services
Respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this appeal at Wexford on 5th May 2016
Representation:
Appellant: Mr. Lars Asmussen BL instructed by: Sean Ormonde & Co., Solicitors, Suite 9, The Atrium, Canada Street, Waterford
Respondent: Ms Ann Nee, Employee Relations Manager, HSE South, Lacken, Dublin Road, Kilkenny
The decision of the Tribunal was as follows:-
Background:
The appellant was employed as a Home Care Attendant to her mother from the 1st August 1998 to the 16th April 2014 receiving a weekly wage of €350.
The respondent contends the appellant was not retained by them but by the appellant’s late mother and therefore the respondent was not the appellant’s employer. The respondent relied on a document regarding a scheme, hereinafter the Scheme Document, under which the appellant was retained and wherein it was stated that the respondent would employ persons on behalf of the party being cared for if that party so wished.
Submissions, documentation and sworn evidence from the appellant were adduced. These included payslips, a P60 and various letters on the respondent’s letterhead citing the appellant as an employee of the respondent were opened to the Tribunal.
Determination:
Having considered the evidence adduced at the hearing and the submissions of the parties the Tribunal finds that the appellant was an employee of the respondent.
The Tribunal finds that the respondent’s interpretation of the relevant portion of the Scheme Document was incorrect particularly if the paragraph was read as a whole. The relevant portion of the Scheme Document, when read as a whole, makes it clear that once the respondent took over the employment of a carer on behalf of the party requiring the carer they took on the responsibilities and obligations of an employer.
Accordingly, the Tribunal finds that the appellant is entitled to a redundancy lump sum under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria:
Date of Commencement: 1 August 1998
Date of Cessation: 16 April 2014
Gross Weekly Wage: €350.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)