EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NOS
John Power – Claimant 1 (JP) UD802/2014
David Bevan – Claimant 2 (DB) UD813/2014
against
Shannon Foynes Port Company – Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Wallace
Members: Mr W. O’Carroll
Ms H. Kellegher
heard this case at Limerick on 29th September and 24th November 2015
Representation:
Claimants: Mr John Wilde Crosby BL instructed by Maurice Power Solicitors,
Lord Edward Street, Kilmallock, Co. Limerick
Respondent: Ms Mairead Crosby& Sinead Mullinsof IBEC,
Gardner House, Bank Place, Charlotte Quay, Limerick
At the outset the Respondent’s Representative stated that neither Claimant had ever been employed by the Respondent but they had been engaged from time to time as independent contractors.
The Respondent’s Representative also asserted that the respective claims of the Claimants were lodged outside the statutory time period and therefore the Tribunal has no jurisdiction to hear these claims.
On examination of both of the Claimants’ T1A forms the Tribunal noted that there was a preliminary issue to be dealt with in respect of the date on which the working relationship between the Parties was terminated. It was decided by the Tribunal that this issue was to be dealt with and a determination issued before the substantive issue could be heard.
Respondent’s case:
The Respondent is a Sea Port Management Company and the Claimants were engaged as divers. It was the Respondent’s position that the 1st named Claimant (JP) last worked for them on 15th May 2013 and that as such this was the date of termination of his working relationship with the Respondent. The supervisor for the Respondent (JT) told the Tribunal that he informed JP at a meeting sometime in May 2013 that his services were no longer required and that 11th May was to be his last day at work with the Respondent. It was admitted that JP was called back for another dive on 15th May 2013. JT told the Tribunal that he was instructed by the Manager (JC) to do this and the Manager confirmed this to the Tribunal. There were no notes kept of this meeting and according to JT he finished the meeting by telling JP that JC would meet with JP at some stage. JT was unclear about the purpose of the proposed subsequent meeting to take place between JP and JC. This proposed meeting never took place and a meeting was only arranged with JP after he (JP) wrote a letter to JC on 30th December 2013 in respect of his pension.
A meeting took place between JP, JT and JC on 14th January and a letter issued from JC on 16th January 2014 which referred to JP being previously informed of the termination of the working relationship between the Parties. This was the first written correspondence sent by the Respondent to JP in respect of this matter but the Respondent was adamant that JP was well aware that the termination had occurred in May 2013.
In respect of the 2nd named Claimant (DB) the witnesses for the Respondent never communicated directly with him in any event but expected that JP would have kept him informed of the termination of their relationship as JP was the lead diver. DV had not worked due to a serious illness since November 2012.
It was the Respondent’s position that the working relationship between the Parties had terminated on the 15th May 2013 and that as the Claimant’s did not lodge their claims with the Tribunal until 2nd May 2014 and that in consequence the Tribunal had no jurisdiction to hear their claims.
Claimant’s case:
JP confirmed that a meeting had taken place prior to 11th May 2013 at which he was informed that his last dive was to be 11th May 2013. However he was also told by JT that JC would also meet him at a later date. Given the fact that JC was yet to meet him and the fact that he was called back for another dive on 15th May 2013 JP was of the opinion that his employment had not been terminated at that point. JP told the Tribunal that this was how things operated in the port and that he still expected to get further work. However when JP met with JT and JC on 14th January 2014 and was subsequently written to for the first time on 16th January 2014 he realised then that his employment with the Respondent was terminated.
It was JP’s position that his employment with the Respondent was not terminated until 14th January 2014 and that his claim was therefore in time when lodged on 2nd May 2014.
DB never received any direct communication either verbal or written from the Respondent in respect of his employment with them and he relied solely on the information he received from JP. It was DB’s position that he might still be an employee of the Respondent but that at any rate he was not dismissed before 14th January 2014 and therefore his claim was also on time.
Determination:
It was agreed that for the purpose of this hearing the Tribunal would only decide only on the issue of whether the claim of both Claimants was brought within time.
The Tribunal noted the length of time that each of the Claimants worked for the Respondent. The first written communication terminating his relation with the Respondent was issued to JP on the 16th of January 2014. The Respondent in evidence relied on the fact that it terminated JP’s relationship with it through a conversation with JP but the content and intent of same were unclear. These verbal communications were not conducted by senior management. DB was not privy to these or any other conversations on the issue of its termination of the relationship with the Respondent nor did he received any written communication on same from the Respondent then or since until after he lodged his claim herein.
The Tribunal believes that given the length of service of both Claimants with the Respondent that its termination of their relationship with it should have been structured in written format. Senior Management failed in this regard. The Tribunal find that the letter written to JP on the 14th January 2014 was the first written communication to him on the matter and in consequence the Tribunal find that this as the first notice of termination of its relationship with JP. DB did not receive any written communication from the Respondent.
Given the foregoing the Tribunal finds that both Claimants were within time in filing and serving their respective claims and that the matter should now proceed to the hearing of the substantive issue.
Sealed with the Seal of the
Employment Appeals Tribunal
Dated the 10th March 2016
SIGNED ______________________
CHAIRMAN