RP621/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                         CASE NO.

Kieran Barrett                                                                                              RP621/2014

                                                            - Appellant

against

Initial Respondent: Tom Creedon Limited,      

                                                            - First Respondent 

and 

Added Respondent: James McMahon Limited t/a McMahons Builders Warehouse

                                                             -Second Respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms. K.T. O’Mahony BL

Members:        Mr. D. Hegarty

                        Mr. J. Flavin

heard this appeal in Cork on 19 November 2015

                                       and 26 January 2017

Representation:

Appellant:                   In Person

Respondent 1:             Mr. Dominic Creedon, Philpott Creedon & Co., Solicitors,

                                    43 Grand Parade, Cork

Respondent 2:            Ms. Mairead Crosby, IBEC, Gardner House, Bank Place, Charlotte Quay,

                                    Limerick

The decision of the Tribunal is as follows:- 

Background:

The appellant’s claim is for a redundancy payment in respect of his employment with the first named respondent for whom he had worked from January 1996 to late November 2013.

On the first day of the hearing Director C of the first named respondent (hereafter Co. C) gave evidence. An order was made by the Tribunal to join the second named respondent (hereafter Co. M) to the appeal and the hearing was adjourned so that papers could be served on the second named respondent and to afford it the opportunity to enter an appearance.

On the second day of the hearing the representative on behalf of Co. M made an application to the Tribunal to remove it from the proceedings. Co. M’s position was that it was not a relevant party to the proceedings; it had not been nominated as a respondent in the initiating complaint form to the Employment Appeals Tribunal; Co. M had not received a copy of the initiating document, details of the complaint or of the first respondent’s defence and had only received a letter from the Employment Appeals Tribunal and a notice of hearing for 26^th of January 2017; and finally, the appellant was presently working for Co. M. For these reasons and particularly for the latter reason the Tribunal acceded to the application and the hearing of the appeal, for a redundancy payment, proceeded against Co C.

Summary of Evidence

The first respondent was a subcontractor haulier to Co. M and employed the appellant to drive a small truck for this work. Co. C is based in Inchigeela in Co. Cork and Co. M is based in or near Cork city.

On 8^th November 2013, the appellantphoned Director C to inform him that Co. M had a change of policy, that it was buying its own trucks to provide its own transport and had offered him a job as a driver. Director C phoned the branch and depot manager (DM) of Co. M, who confirmed what the appellant had told him but could not give him the precise date of the termination of his contract with Co. M as the required upgraded licence (digi licence) to drive the new truck had not yet been received. Director C expressed his disappointment to DM for not having informed him of this development and told DM that he expected the appellant’s entitlements to go with him. Co. M’s position was that Director C had been informed of its change of policy in August or early September 2013 but there was no documentary evidence to support this as Co. M’s computer had crashed.

The appellant was not pleased with some aspects of his contract with Co. M and he spoke to Director C on 15^th, 21^st, & 22^nd November 2013. In those conversations the appellant asked Director C if he had alternative work for him and in the later calls he asked about redundancy. There was some dispute between the parties as to Director C’s responses. Director C’s position was that he told the appellant he would seek alternative work for him when his contract with Co. M ended. The appellant’s position was that Director C told him he had only part-time work but could not guarantee that. When he raised his redundancy entitlements with Director C the appellant’s evidence was that he told him to take the Co. M offer or go on the dole. Director C’s position was that in response to the appellant’s queries he told him he would look for alternative employment for him when the contract with Co. M ended. The appellant commenced employment with Co. M on 25 November 2013. On that day the appellant phoned Director C and told him that he could collect his truck which was parked in Co. M’s yard and the key to it was with security. The distance between the two locations is around thirty miles away.

Co. M’s transport manager (TM) told the Tribunal that the company made the decision to no longer use sub-contractors and to acquire their own trucks and drivers and this would be rolled out on an ongoing basis. He informed Director C and other sub-contractors of management’s decision. In 2013 Co. M purchased two trucks, one in April and the other in November 2013. Interviews were held. DM contended that no transfer of undertakings took place when the appellant was hired by Co. M and if the appellant had not taken up the position another driver would have been hired. The appellant was successful and was offered a position by Co. M and commenced employment with it on 25^th November 2013 having secured his required Digi licence. The appellant was given a new contract of employment and required to complete a six months probationary period. Co. M received delivery of their second truck on 18^th November 2013. On that day TM took the appellant on a two-hour trip to familiarise him with the bigger vehicle but the claimant was a passenger as he had not received his digi licence at that time.

DM explained that the appellant had attended an interview for a new position in Co. M. It is not clear when the interview with the claimant was held. The appellant was offered a position some time later and commenced with Co. M on 25^th November 2013.

The appellant’s position was that he had not been interviewed by Co. M but that management of that company had asked him to work for it. At that point he refused as he did not want to lose his seventeen years service with Co. C but he told management that if there was no work available for him with Co. C he would work for Co. M. The appellant applied for his digi card licence in mid-October and received it in late November 2013.

Determination:

The Tribunal unanimously finds that the appellant was not dismissed from his employment by Director C. The Tribunal is satisfied that the appellant was offered a position by Co. M and once he received his digi licence he commenced working with that company on 25^th November 2013. Co. M ended its contract for haulage with Co. C and took on the appellant as a driver, albeit to drive a bigger truck with a crane on it. As there was no dismissal by the first named respondent, the appeal under the Redundancy Payments Acts 1967 to 2007 fails.

Note: A transfer of an undertaking arises by the operation of law, irrespective of the parties’ intentions.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________ 

(Sgd.) ________________________

     (CHAIRMAN)