EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD987/2015
RP373/2015
CLAIM OF:
David Curry
against
Cardiffsbridge Limited t/a The Cardiff Inn
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms Fiona Crawford
Members: Mr Cyril McHugh
Mr Jim Dorney
heard this claim at Dublin on 17th August 2016
Representation:
Claimant : Mr Robert Crowley B L instructed by Collins Crowley, 2a Christchurch Hall, High Street, Dublin 8
Respondent : Martin Moran & Co Solicitors, 12 Stephens Lane, Dublin 2
The determination of the Tribunal was as follows:
Claimant’s Case
The claimant commenced employment as a bar man with the respondent in June 2008. By 2013 he was the bar manager of this establishment. The respondent became his employer in early March 2015 through a transfer of undertaking exercise. This respondent and his previous employer shared at least one director. That director and the claimant clashed on a number of occasions over work issues.
The claimant indirectly discovered the identity of his new employer following that transfer. Up to then he had no knowledge of it and was never communicated to on this changeover. Shortly after that changeover it became clear to him that the new owners planned to downgrade his status and role within the company. On 9 March 2015 he was approached by this overlapping director and the two men met at the back of the premises where he was offered a “pay-out” by him. At that time the claimant was experiencing a hostile and unsettling atmosphere at work, feared for his future there and had his head “fried”. Due to that mindset and considering the prevailing circumstances the claimant verbally agreed to accept this offer. He then left the premises and returned some days later and put his signature to an agreement. The claimant had not taken legal advice prior to that act.
The claimant maintained his departure from the company was not voluntary and described the version of events as given by the relevant director as untrue.
A former colleague of the claimant outlined some of her experience of working at the respondent. She indicated that having a new owner spelled trouble for her and the claimant. There was almost no event or communication to mark this change of employer.
Respondent’s Case
A director of the respondent who was also a director of the claimant’s former employer told the Tribunal he had a good relationship with him. This director became the de facto owner of the business from early March 2015 and agreed that the claimant was the bar manger prior to that changeover. Subsequent to the transfer this witness demonstrated he was in charge by rearranging the claimant’s role and functions. This director commented that he needed some time to get his “bearings” on how to run the business.
This director informally met the claimant on 9 March with purpose of canvassing his views on the business. According to the witness the claimant openly and explicitly suggested that he was willing to accept a redundancy package should a suitable monetary offer be made? An offer was then made and accepted and the claimant vacated the premises.
An accountant then drafted up a letter reflecting some of that agreement and the claimant signed it on 13 March 2015. This director added that the respondent received a rebate based on a specified but underpaid redundancy amount.
Determination
It was noted by the Tribunal that the director stated he was not familiar with a redundancy procedure and this statement was reflected in the way he carried out this dismissal. Having heard and considered the adduced evidence the Tribunal finds that this was not a redundancy case. Accordingly, the appeal under the Redundancy Payments Acts, 1967 to 2007 falls. It is clear that monies paid under the label of redundancy cannot be in accordance with that procedure.
The evidence from the respondent was disjointed, vague, unconvincing and ill-informed.
While the claimant misinformed himself and indeed acted contrary to his own interests regarding the nature and circumstances of his cessation he never intended to nor in fact did he resign from the respondent. This is not a case of constructive dismissal. However, it is a case of dismissal and as the Tribunal prefers the evidence of the claimant it unanimously finds that his dismissal was unfair under the Unfair Dismissals Acts, 1977 to 2007. As there is no requirement for the claimant to return that “redundancy” money the Tribunal awards the claimant €32,500.00 as compensation under the above Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)