EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Liam Donnelly RP330/2015
Against
Patrick Hoare & Sons Limited
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2014
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr N. Ormond
Mr A. Butler
heard this appeal at Dublin on 3rd April 2017 and 18th May 2017
Representation:
Appellant: Mr Paul Ryan, Ennis Citizens Information Service, Bindon Lane, Bank Place, Ennis, Co Clare
Respondent: Mr Donal Smyth, Patrick F Treacy & Co., Solicitors, 29 Pearse Street, Nenagh, Co. Tipperary
Background:
The claimant lodged a claim under the Unfair Dismissals Acts, 1977 to 2007 together with a claim under the Redundancy Payments Acts, 1967 to 2007. The claim under the former went to the Rights Commissioner who heard a case for constructive dismissal and found that the claimant was not unfairly dismissed by the respondent. However this was appealed to the Labour Court where it was determined that the claim to the Rights Commissioner was not lodged within 6 months of termination of employment as required under the Act and therefore the Labour Court found that the claim in the first instance was “out of time”.
However the claim under the Redundancy Payments Acts came before the Tribunal and as this claim was lodged within the time limit set down in this Act (within 12 months of termination of employment) the Tribunal had jurisdiction to here this claim.
It was common case that the claimant had been placed on reduced working hours for some time before being placed on temporary lay-off. His working week had been reduced from a 5 day week down to a 3 day week. After at least 4 weeks on lay-off the claimant submitted a form RP9 to the respondent requesting payment of a redundancy lump-sum. However within 7 days of this the respondent completed Part C of this form offering the claimant a return to work on the same basis (3 day week) as before lay-off.
The claimant subsequently returned to work but found that the job had changed to a large degree and after 1 week he went out on sick leave and ultimately decided to leave his employment.
The claimant contended that his job had ceased to exist and that as such he had no choice but to leave and claim an entitlement to redundancy.
However the respondent held that a redundancy situation did not exist at the time of the claimant’s termination of employment as there was still work available to him and that he resigned of his own volition.
Determination:
The Tribunal carefully considered the evidence adduced at the hearing and is satisfied that the respondent did not dismiss the claimant by way of redundancy. The proper procedure was followed by the respondent in offering the claimant a return to work after a period of temporary lay-off and indeed the claimant took up this offer and returned to work. It should be noted that the prior reduction in the claimant’s working week from 5 days down to 3 days does not constitute “short time” and therefore the claimant was returning to work for at least 13 consecutive weeks without being on short-time or lay-off.
The claimant, having returned to work was dissatisfied in the changes within the workplace and decided that he had no option but to resign.
In all the circumstances the Tribunal finds that a redundancy situation did not exist at the time of the claimant’s termination of employment and that the claimant had a job to return to if he so wished.
Therefore the Tribunal finds that this appeal under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)