EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1055/2015
RP362/2015
MN457/2015
CLAIM(S) OF:
Kevin O'Neill
- claimant
against
Paul Doyle Transport Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr R. Murphy
Mr. J. Dorney
heard this claim at Dublin on 26th August 2016 and 11th November 2016
Representation:
_______________
Claimant: Mr Lars Asmussen BL instructed by: Mr Finian O'Neill, Augustus Cullen Law, 7 Wentworth Place, Wicklow Town, Wicklow
Mr Gus Cullen, Augustus Cullen Law, 7 Wentworth Place, Wicklow, Co Wicklow
Respondent: Ms Vanessa Costello, Esa Consultants, The Novum Building, Clonshaugh Industrial Estate, Dublin 17
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced in the course of two days of hearings. The claimant commenced his employment with the respondent company in and around July 2005 and had been employed as a driver of ‘tipper’ and subsequently ‘grab’ trucks. The claimant worked a 5 to 6 day week and in the initial years there was plenty of work to be done
As the effects of the recession impacted on the workplace it was apparent that there was insufficient work to keep the number of employed drivers engaged on a fulltime basis.
The number of drivers in the respondent yard dwindled and what work needed to be done could be done in significantly less than the 5 to 6 days for which the claimant was being paid.
There is some conflict as to whose idea it was that the claimant would be put on short time and avail of unemployment benefit for days where work was not allocated to him. It is clear from the Social Welfare records provided that the claimant entered into this scheme in and around the summer or autumn of 2013 and continued to avail of this scheme up until the summer of 2015.Looking at the figures provided by Social Welfare it is clear that the need to supplement income for days not worked was operated on a weekly basis. It seems the pattern of getting three days’ work from the respondent company and three days allowance from Social Welfare allowed the claimant to make ends meet in what were clearly difficult times. The claimant’s wife and the respondent’s wife worked out an arrangement whereby the ‘casual docket’ system being operated under the scheme meant that the employer would sign off on the claim being submitted on a weekly basis.
By the beginning of 2015 the claimant was also picking up some alternative casual employment. This included driving work but also labour and gardening work and anything that would help with the rising costs of living.
It is quite clear from the Social Welfare figures that by the beginning of May 2015 the likelihood of the claimant getting absolutely no working days out of the respondent’s yard had increased such that through May, June and July the claimant was receiving maximum benefits which showed he was not getting any work through the respondent.
There was an honest admission on the part of the claimant that he was actively looking for alternative jobs as and when he could. He was aware of the fact that on the limited amount of work than was being distributed amongst the respondent company employees, he was not always the first to be asked. To some extent his inability to drive an articulated lorry was seen as a drawback as the respondent’s workload moved in that direction. The claimant says he did not have the finances to upskill himself in this regard and the respondent had not suggested that he would upskill him. It was a difficult time for both parties. The claimant said he saw work he believed he should be doing, being done by others. The respondent believed the claimant was available to work for anyone other than him.
For no very good reason, the parties stopped communicating in any meaningful way and it was left to the respective wives to keep in touch to sort out the ‘dockets’ required for Social Welfare.
By July 2015 the Social Welfare department started putting the claimant under pressure to get his P45 from the respondent. The Tribunal assumes that this is standard practice in circumstances where a 4 to 6 week period has gone by with no work (and no promise of work) having been provided by the employer, as inferred from a letter sent on the 1st of November from Social Welfare which was opened to the Tribunal. The Tribunal was not provided with an explanation as to why this was sought and it is certainly not for Social Welfare to determine whether a redundancy situation existed in the workplace. It is assumed the P45 terminates the employment and allows Social Welfare to move the claimant onto Job Seekers allowance or whatever other assistance he ought to be on in light of the work not being there anymore.
In any event the claimant’s wife sought redundancy and the P45 by text message on the 1st and 10th of July 2015.The Tribunal has every sympathy for the claimant’s wife (a most convincing witness) who was fearful of losing welfare and who was aware of the difficulty faced by the claimant with regards to obtaining and having work on each and every day.
In effect the claimant through his wife was doing nothing more than exercising his right to call time on this employment and consider himself to have been made redundant ( as allowed for under the RP50) by reason of the reduced nature of the work and pay.
There followed an extraordinary set of circumstances wherein a letter of redundancy issued and was then purportedly withdrawn. The respondent’s evidence is that there was work to be had but there was no evidence of any overtures being made to alleviate the situation and convince the claimant that he was a valued member of the team. In fact all communication ceased and the claimant was given no reason to believe that it would be in his interest to return to the workplace.
The Tribunal must find that the letter of the 30th of July was in fact an acceptance of the end of the employment relationship in circumstances where the claimant’s skillset was insufficient and he had been replaced. This amounted to an unfair selection for redundancy and therefore is an unfair dismissal. Accordingly the Tribunal awards the claimant €9,500 under the Unfair Dismissals Acts 1977 to 2007.
Based on a three day week, the Tribunal also allows the appeal under the Minimum Notice and Terms of employment Acts, 1973 to 2005 and awards the claimant €1200 as compensation in lieu of four week’s notice.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)