EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Dermot O'Dwyer -claimant
UD1016/2014
against
Albert C O'Dwyer -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney B.L.
Members: Mr. J. Hennessy
Mr. J. Jordan
heard this claim at Thurles on 15th September 2015
Representation:
Claimant:
Mr J.J. Fitzgerald, J.J. Fitzgerald & Company, Solicitors,
Friar Street, Thurles, Co Tipperary
Respondent:
Ms. Michelle O'Riordan, Holmes O'Malley Sexton, Solicitors,
Bishopsgate, Henry Street, Limerick
Summary of evidence:
Dismissal as a fact was not in dispute between the parties.
Preliminary Issue:
It was submitted by the respondent that the claim was lodged outside the stipulated six-month time limit. Eight weeks’ notice was provided to the claimant on the 31st October 2013 but the the claim was not lodged until the 25th June 2014.
It was submitted by the claimant that the written notice stated that his employment would terminate on the 31st December 2013 and that he had filed the claim within six months of that date. In support of this the claimant sought to rely on the redundancy paperwork and the T2 filed by the respondent which stated that the claimant’s employment ended on 31st December 2013.
Determination on Preliminary Issue:
The Tribunal found that the 31st December 2013 was the relevant date of dismissal in this case as per S.1(a) of Unfair Dismissals Act, 1977 which defines “date of dismissal” as:
“where prior notice of the termination of the contract of employment is given and it complies with the provisions….of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.”
Thus the claim was lodged within the stipulated six-month time period as it was lodged on the 25th June 2014. The Tribunal was satisfied it had jurisdiction and proceeded to hear the claim under the Acts.
Substantive issue:
The respondent is a retired solicitor for whom the claimant worked for 31 years. The claimant worked for the respondent from 1982 to 2013 and was the longest serving employee. There is a familial relationship between the parties in this case.
A central issue during the employment was whether or not the claimant would purchase the business of the firm and the building which housed it when it came time for the respondent to retire.
It was the respondent’s evidence that he spoke to the claimant about this issue on a monthly basis from the ‘90’s and that the claimant knew that any proposal must include purchasing the building. The respondent worked out a reasonable purchase figure based on turnover and the valuation of the building and discounted the figure for the claimant. In or around 2008 or 2009 the respondent provided the claimant with ten-year figures as requested. The claimant was supposed to be seeking finance at that time but nothing transpired.
It was the respondent’s evidence that it was during the latter years of the employment that this situation became a real concern for him, particularly, as he neared retirement in 2013. It was his understanding for the majority of the employment tenure that the claimant would ultimately put forward a proposal to purchase the premises and the business.
However, only one proposal was put forward by the claimant via his accountant during August 2013. This proposal was not viable for the respondent as he would remain the owner of the premises and the claimant’s firm would be his tenant. The claimant was also seeking a five-year business lease on the premises as part of the proposal.
It was necessary for the respondent to sell the premises as it is a listed building requiring substantial maintenance and remedial works on the roof. An engineer had advised the respondent that costings for such work could reach €100,000. The respondent outlined the condition of the premises to the Tribunal and his concerns for the future if he did not sell it. The respondent feared it would become a liability to him in his retirement.
It was the respondent’s evidence that he told the claimant that the proposal was “not a runner.”
The respondent began to advertise the business and premises and he was certain that the claimant was aware of this. It was the claimant’s evidence that he was aware of this and that he had asked the respondent to keep him informed as to what he was up against in terms of offers made to the respondent.
The respondent met with a potential purchaser who was willing to purchase the building and the business (in accordance with the relevant Law Society regulations on client authorities). However, a condition of the sale to the purchaser was that the claimant’s position would have to be made redundant as his salary was the largest cost to the business. In addition the purchaser was a solicitor who would carry out the work in the firm himself. The other staff members would be retained including a part-time solicitor. The sale was completed and the respondent gave the claimant notice by placing a letter on his desk on the 31st October 2013. During that week he had mentioned to the claimant about the purchaser. He paid the claimant in lieu of notice as he thought it might be difficult for him to work the notice period.
It was the claimant’s evidence that the first mention of a potential redundancy situation was on Wednesday, 30th October 2013. The previous week two individuals were in the practice reviewing files. The respondent had informed the claimant that they were present on behalf of a potential purchaser and this worried the claimant. He was aware that his proposal to the respondent had “gone badly” but he had not received a formal response to his proposal. On the 30th October 2013 he asked the respondent to let him know what he was up against in terms of offers made. The respondent told him that the conversation was premature. The claimant then returned to the office on Friday, 1st November 2013 to find the letter from the respondent informing him that his position was redundant effective from 31st December 2013. He was extremely shocked and realised that matters were at a lot more advanced stage then he had been told and that he was not provided with an opportunity to match or respond to any offers made.
During cross-examination the respondent accepted that there was a transfer of the building, the staff and the clients to the purchaser on the 1st December 2013 but the respondent’s practice ceased.
The claimant thereafter received a statutory redundancy payment. He gave evidence of his financial loss and his efforts to mitigate that loss which included opening his own practice in early December 2013 and he gave evidence of his earnings to date.
Determination:
Having considered the evidence adduced it is clear to the Tribunal that the claimant was unfairly dismissed from his employment. In reaching its decision the Tribunal considered the lack of consultation with the claimant but in particular the timing of the redundancy which occurred prior to the date of transfer. The company in this case breached the transfer of undertaking regulations by virtue of making the claimant redundant at the point in time that it did i.e. prior to the date of transfer which was the 1st December 2013. The Tribunal also notes the manner in which the decision was communicated to the claimant.
The Tribunal finds that the claimant should have transferred with the other employees. The Tribunal finds €10,000 to be the appropriate sum of compensation under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal awards this sum over and above the statutory lump sum paid to the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)