UD1081/2015 RP412/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                             CASE NO.

Patrick Murray                                                              - Claimant                          UD1081/2015

                                                                                                                                RP412/2015

against

Wiser Limited T/A Wiser Bins And/Or Wise Recycling - Respondent

Under

UNFAIR DISMISSALS ACTS 1977 TO 2015

REDUNDANCY PAYMENTS ACTS 1967 TO 2014

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 7th December 2016 and 30th May 2017

Representation:

Appellants: Ms Carmel Best, Best & Co, Solicitors, 42 South Mall, Cork

Respondents: Patrick J. O'Shea & Co. Solicitors, 77 Main Street, Midleton, Co. Cork

The determination of the Tribunal is as follows:

Background:

At the outset the appellant withdrew his claim under the Unfair Dismissals Acts, 1977 to 2015 but continued with his appeal under the Redundancy Payments Acts, 1967 to 2014.

It was common case that the company in which the appellant was employed from 11 May 1999 became a wholly owned subsidiary of the respondent in 2009. The appellant was employed as a skip hire driver by the subsidiary and prior to that by the former owner of the business, delivering and collecting skips. In mid-2015 the subsidiary closed down and all its employees including the appellant were transferred to the respondent. In or around the same time, through no fault of the respondent, its operations base changed from Cork city to Midleton. A letter from the directors to the appellant dated 16 June 2015 stated.

“We fully intend on keeping all the employees in jobs by transferring you to the respondent on 30^th June. We will honour all your existing terms and conditions where at all possible and your length of service with the business to date will be honoured.”

The appellant worked with the respondent for around two and a half weeks collecting bins on different runs each day. He had to phone in the previous evening to find out his run for the following day. He started at 4.30am, 5.00am or 5.30 am and could finish anytime from 4.00pm to 8.00pm. His children were in bed some days when he arrived home. Nobody told him that a bin run was being developed for him. He denied he could start when he wished; he was told when to start. As a favour to his previous employer he had done a bin collection for a half day on alternate Saturdays. He agreed he could take breaks but that meant he would finish later; you had to finish the run. He found the bin-collection runs too long and too dangerous as he used to feel sleepy. He told the transport manager that he was not one bit happy with the job. On Friday 17 July 2015 he and a fellow worker gave back their fobs and keys to the respondent. He had tried the new job for almost three weeks and felt the respondent was doing nothing about organising a run for him. In his former employment he worked from 8.30am to 4.30pm but in summer starting time was brought forward to 7.30am and reverted back to 8.30am in the autumn.

The respondent’s position was that the appellant never raised a grievance. His resignation came out of the blue. The appellant was doing holiday relief driving. A letter from the appellant’s solicitor dated 10 July 2015 but received by the respondent on 13 July 2015 notified the respondent that the appellant’s new terms and conditions were vastly different (to his original terms and conditions) and sought the terms of his redundancy. The respondent denied that at a meeting on 17 July 2015 Director COB told the appellant and a fellow driver that the current position could drag on for eighteen months. The appellant sought redundancy and resigned on Friday 17 July having given two days prior notice.

The appellant felt there was no reality to the respondent’s position that he could choose his own hours as a large number of bins have to be collected and if he started later he would have to work later into the evening and furthermore by starting early you avoid the school traffic. The move to Midleton would not be a problem for the appellant if the job was the same. The appellant would not accept the new job.

Determination:

 Having carefully considered the evidence the Tribunal finds that the terms and conditions of the alternative employment offered to the appellant were materially different, less favourable and did not constitute suitable alternative employment for the appellant. It was reasonable for the appellant to refuse the alternative position.

Accordingly, the Tribunal finds that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payment Acts 1967 to 2007 and makes an award based on the following criteria: 

This award is made subject to the appellant having been in insurable employment, during the relevant period, in accordance with the Social Welfare Acts.

It should be noted that any payment made through the Social Insurance Fund is calculated based on maximum earnings of €600.00 per week.

The claim under the Unfair Dismissals Acts 1977 to 2007 was withdrawn.

 Sealed with the Seal of the

 Employment Appeals Tribunal

This   ________________________

 (Sgd.) ________________________

     (CHAIRMAN)