EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
RP70/2015
APPEAL OF:
Andrew O'Riordan
Against
ISS Ireland Limited
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr T. Gill
Mr D. McEvoy
heard this appeal at Limerick on 10th March 2016 and 10th May 2016
Representation:
Appellant:
Ms. Karen Fitzgerald, John Lynch & Company Solicitors, Bridge House, South Quay, Newcastle West, Co Limerick
Respondent:
Raymond Mulcahy. IBEC, Charlotte Quay, Limerick.
Background:
The respondent is a security services provider and the claimant was initially employed as a Security Guard but recently had stepped up to the role of Supervisor albeit without any increase in pay or a new contract of employment. The claimant commenced employment with the respondent on 6th February 2005 and his employment terminated on 8th September 2014.
It was common case that the claimant resigned his position by way of e-mail dated 6th August 2014 and that this was accepted by way of letter dated 6th August 2014.
It was also common case that the claimant was to be transferred to another company pursuant to a transfer of undertakings.
The respondent contended that the claimant was to transfer with his job to the new company as the client contract on which the claimant was engaged was transferring to that company. However the claimant resigned before the transfer took place. The claimant was fully aware of the impending transfer of undertakings and the fact that he was to transfer to the new employer in line with this but chose to resign instead. The claimant resigned by email on the 6th August, 2014, the respondent replied by email the same day, offering the claimant 24 hours to think over his decision, and the claimant replied that same day confirming his decision to resign. The claimant also, in his letter of resignation, thanked the respondent for the opportunities and experience afforded to him during his employment. Therefore the respondent held that a redundancy situation did not exist and the claimant was not made redundant. The respondent also held that even though other employees were made redundant in the run up to the transfer of undertakings that the claimant was a supervisor and therefore different from those other employees. For that reason the new company wanted to retain the claimant. The claimant did not raise any grievance with the respondent, as provided in their employee handbook.
The claimant told the Tribunal that he wanted to keep his job and would have worked for the new company but that he was unfairly treated by the respondent insofar as he was not offered redundancy when other employees were. He acknowledged talks about the proposed transfer of undertakings were still ongoing when he resigned, he would have agreed to the transfer of his employment, if it had been offered and confirmed, and he accepted that knowing now what transpired afterwards, if he had not resigned, he would more than likely still be working.
Determination:
The Tribunal considered the oral and documentary evidence submitted to it at hearing, and the submissions made by both parties. The Tribunal notes it was accepted by both sides that the claimant resigned by email on 6th August, 2014, and on being given time to reconsider, the claimant further confirmed his decision to resign.
The Tribunal does not find that the claimant was treated unfairly in not being selected for redundancy at the relevant time, as claimed.
The Tribunal are satisfied that the claimant resigned of his own volition, and do not find that his position, at the time of resignation, was redundant, or that the claimant was treated unfairly in not being selected for redundancy, and so, his claim under The Redundancy Payments Act, 1967 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)