EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Zbigniew Szymanski RP852/2014
WT234/2014
against
Devil's Glen Equestrian Centre Limited
Under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. J. Goulding
Mr. F. Barry
heard this appeal at Dublin on 17 December 2015 and 09 February 2016
Representation:
Appellant: In person
Respondent: Ms Cliona Kimber BL instructed by
Miley and Miley solicitors, 35 Molesworth Street Dublin 2.
The decision of the Tribunal was as follows:
Appellant’s Case
The appellant commenced employment with the respondent in November 2005. He listed his position there as a farm labourer and caretaker. In additional to a fixed weekly wage the appellant also resided on the premises. His working hours and days varied from week to week.
He was not furnished with a written statement of his terms and conditions of employment.
The appellant told the Tribunal that his employer had asked him on occasions whether he would be looking for another job back in his native Poland. His response was that he liked his employment and he had no reason to leave it. He also said to his employer that if there was no work for him then to “prepare the documents for me”. He added that his employer told him that his “work would be ending, my position ending”. These verbal exchanges occurred in August 2014. However, he agreed to continue on working for another month following a request to do so from the respondent. The appellant rejected a further extension in his employment as he was not prepared to work under the new conditions sought by his employer.
Around that time activity within the respondent had declined and he cited the reduction in the number of horses that needed attention as evidence of that decline. Apart from horses there was other work to be done like painting and general maintenance.
The appellant also contended that the respondent did not properly pay him for his statutory leave nor adequately reimburse him for public holidays.
Respondent’s Case
The managing director outlined the history and development of the respondent. According to this witness the appellant notified him in August 2014 that he wanted to leave and return to Poland. A verbal agreement was reached whereby both parties extended their employment relationship until the end of September. This witness described as nonsense the accusation that the respondent asked the appellant to continue working beyond that in an undocumented way. The appellant informed the company he was leaving at the end of that month.
This director stated that at the time of the appellant’s departure that his position as an employee was not made redundant and that there was work there for him.
A son of the managing director who worked with the respondent told the Tribunal that there were at least twelve horses on the premises when the appellant left.
This witness maintained a diary in which he recorded the working times and days of employees including the appellant. Those diary entries were relied upon to ascertain the appellant’s records and entitlements to leave and public holidays.
Determination
Based on the adduced evidence the Tribunal cannot find that the appellant’s cessation of employment with the respondent was by way of redundancy. While the circumstances and manner of that termination were in dispute, the position and job of the appellant remained intact. The appeal under the Redundancy Payments Acts, 1967 to 2007 fails.
The appeal under the Organisation of Working Time Act, 1997 is allowed. There is an onus on the employer to keep accurate and clear records on their employees leave and public holidays. The respondent in this case did not fulfil that onus. Accordingly, and on the balance of probability the Tribunal is not satisfied that the respondent properly reimbursed, compensated or otherwise credited the appellant with his full entitlement under that Act. The Tribunal therefore awards the appellant €626.25 as compensation for his outstanding public holiday entitlements.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)