UD41/2015

EMPLOYMENT APPEALS TRIBUNAL                          

CASE NO.

UD41/2015

CLAIM OF:                                                                                                         

John O'Callaghan                                              

against

Cogan's Garage Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K. T. O'Mahony B.L.

Members:     Ms M. Sweeney

                     Mr D. McEvoy

heard this claim at Cork on 15th April 2016

Representation:

Claimant: Frank Kellher & Co, Solicitors, 1 Pearse Square, Cobh, Co. Cork

Respondent : Mr David Gaffney, Gaffney Solicitors, 4b Father Mathew Street, Cork

The determination of the Tribunal was as follows:

The respondent raised a preliminary issue. It contended that the claimant did not have the requisite one year’s continuous service such as to entitle him maintain an unfair dismissal claim. Its position was that it only employed the claimant on a part-time basis, generally for around the first half of the calendar year and then terminated his employment for the latter part of the year and re-employed him the following January. It had never put the claimant on lay-off. Having heard brief submissions on the issue, the Tribunal determined that it would hear the full evidence in this case to determine the preliminary issue.

Summary of Evidence

The respondent has a car dealership and garage. It employed the claimant on a fixed-term contract from 5 January 2004 to 3 September 2004 to valet cars. The contract of employment was in writing, signed by the employee and on behalf of the respondent and contained the usual clause excluding liability under the Unfair Dismissals Acts in respect of a dismissal consisting only of the expiry of the term without its being renewed. Over the following years the claimant worked with the respondent for periods of varying duration, generally commencing in January each year but he did not receive any further contracts of employment. The claimant’s position was that his employment with the respondent continued in a seasonal way from 2004 up to July 2014. He worked 40 hours each week.

Sometime before the commencement of the busy valeting period in January 2015, the respondent decided not to continue the usual practice and instead hired another worker to provide valeting services.

The valeting manager told the Tribunal that he had worked with the claimant for several years. The claimant worked during the busy valeting period. They were friends, socialised together occasionally and the claimant maintained contact over the period he was off work. They would be in contact before Christmas each year and would agree a date for the claimant’s return to work in January. The witness could not remember exactly how it happened each year. They always wanted someone in January. The position of the valeting manager was that the relationship between them soured in June/July 2014 as the claimant was slacking off in his work, only valeting two cars rather than the usual three or four per day. They stopped talking. He concluded that he could no longer work with the claimant. He did not inform the respondent about this but he discussed it with the Financial Controller (FC), who was also responsible for HR matters.

The claimant’s position was that before Christmas each year the valeting manager would contact him about his return date but had not done so in December 2014. The claimant contacted FC on 8 January 2015. He had not contacted her before that, due to a family funeral. She informed him that the respondent had promised the work to someone else before Christmas and that he had started on the job in January. A difficulty had arisen between the valeting manager and himself in July 2014, a few weeks before his work ended and the valeting manager stopped talking to him. There was no contact between them after that. The claimant denied the valeting manager’s assertion that he (the claimant) had indicated to him before he left in July 2014 that he would not be coming back to work. He enjoyed his work and wanted to continue in the employment.

FC’s evidence was that she instructed payroll to issue a P45 to the claimant every summer when his employment ceased. The claimant was not informed in July 2014 that his job was ending. No procedures were applied because it was the termination of a fixed-term contract. Lay-off had never been mentioned. The claimant re-applied for his job each year.  

Determination

Having considered the evidence the Tribunal finds that the only fixed term contract between the parties was the contract from 5 January 2004 to September 2004. Thereafter and up to 2014, but   apart from 2005, the claimant returned to work with the respondent in January each year for varying periods but the status of the employment relationship was never clarified.

The practice developed of bringing the claimant back in January each year (except 2005, when he started back in March) to help during the busy valeting period, commencing with the arrival of the new cars in the garage. This pattern continued for at least ten years. From 2010 the claimant had regular long periods of employment each year, beginning in January. The Tribunal finds that the relationship between the claimant and the respondent morphed into an employment relationship with periods of lay-off in between.

Under the First Schedule of the Minimum Notice and Terms of Employment Act 1973 the service of an employee is deemed continuous unless the employer dismisses the employee or the employee resigns. The First Schedule of the Minimum Notice and Terms of Employment Act 1973 further provides that a lay-off is not a dismissal. The P45 is a revenue document. The issuing of a P45 to an employee is not determinative of whether there has been a dismissal; a P45 is frequently issued to an employee being put on lay-off for social welfare purposes. Thus, the Tribunal is satisfied that claimant’s employment is continuous. In any event, paragraph 10 of the First Schedule which deals with computable service provides that a lay-off of not more than twenty six weeks between consecutive periods of employment shall count as a period of service. In 2013 the claimant worked a continuous 26 weeks up to 28 June, followed by three weeks employment with the respondent in September 2013 and a further period of employment between 21 October and 8 November 2013, and returned to work on 1 January 2014, working up until mid July 2014. Accordingly, as none of the aforementioned breaks are more than twenty six weeks, the claimant has one year’s continuous service such as to entitle him to maintain a claim under the Unfair Dismissals Acts 1977 to 2007.

Finally, on the issue of jurisdiction the Tribunal holds that 8 January 2015, being the date on which the claimant was first informed that he would not be commencing work with the respondent in January 2015, was the date of dismissal. Thus, the claim lodged on 12 January 2015 was within the prescribed statutory time limit.

As the   dismissal did not result wholly or mainly from one or more of the matters   specified in section 6 (4) of the Unfair Dismissals Acts 1977 to 2007 or was   not justified on any other substantial ground and in the absence of any fair   or any procedures in terminating the claimant’s employment the Tribunal finds   the dismissal was unfair and the claim under the Acts succeeds. Taking   account of the claimant’s normal pattern of work with the respondent as well  as his unavailability for work the Tribunal awards him €4,100.00 as   compensation under the Unfair Dismissals Acts 1977 to 2007.

Sealed   with the Seal of the

Employment   Appeals Tribunal

This   ________________________

(Sgd.)   ________________________

     (CHAIRMAN)