EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
MN408/2015
MN410/2015
CLAIM(S) OF:
Michael Butler
-claimant A
Edward Maher
-claimant B
against
Kilcarrig Quarries Limited
-respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms. S. Kelly
heard this claim at Carlow on 13th December 2016
Representation:
Claimants: In person
Respondent: John Foley & Co. Solicitors, Station Road, Bagenalstown, Carlow
Summary of the case:
The parties consented to the hearing of these claims together.
The claims before the Tribunal related to minimum notice. It was the company’s case that the claimants were only entitled to one week’s notice however the claimants believed their entitlement to be greater. It was also the respondent’s case that the claimants had voluntarily left the employment. This was refuted by the claimants and both claim forms detailed that the claimants considered themselves as having been dismissed from the company. Whether or not the periods of employment with the company were continuous was an issue between the parties.
The Tribunal heard evidence from the parties. TM for the respondent gave evidence that Claimant B worked for the respondent for 16 weeks in 2013, 35 weeks in 2014 and for 6 weeks in 2015 until the employment ended in April 2015. The circumstances of Claimant A were similar. His last P45 issued on the 9th April 2015. He had worked for the respondent company for 43 weeks in 2014 and 15 weeks in 2015. He previously received a P45 on the 12th December 2013 subsequently returning to work thereafter on the 3rd March 2014.
TM stated that the weeks that Claimant B worked for the respondent were not continuous. However, TM explained that the nature of the work was not seasonal. The work was sometimes terminated by the claimants and at other times by the company. If work later became available the company made contact with the claimants to ascertain whether or not they were available to take up the offer of work. TM also stated that P45s issued to the claimants.
Claimant A worked elsewhere during the winter months each year and TM stated that he did not take issue with this. When Claimant A started with the other employer he was provided with a P45.
It was the company’s case that Claimant B requested his last P45 and holiday pay from the company and these were provided to him. However, he remained on the payroll as an employee. Claimant B could refuse the work offered by the company and TM would not pry into the reasons for his refusal.
Both claimants were provided with a cheque from the company for pay in lieu of one week’s notice but neither cashed the cheque.
In reply to questions from the Tribunal, TM agreed that it was open to the claimants to return to work with the company when they were not working elsewhere however there was no obligation on the claimants to accept the offer of work from the company.
Evidence was tendered by Claimant A. He first worked for the respondent in 2000. He stated that he worked on a continuous basis for the company until “times got bad” and as a result he worked on and off throughout 2007/2008. Claimant A confirmed that he then left the respondent company and went to work elsewhere for a period of six months but that later he returned to work for the respondent company. He confirmed that around Christmas time each year he works on a three-month contract for another company. He would return to work with the respondent company when TM telephoned him.
It was agreed by the parties that Claimant B’s employment was of a similar nature as that given by Claimant A.
Determination:
The Tribunal is satisfied that each period of employment was an individual standalone employment by virtue of the fact that there was no obligation on the employees to accept an offer of new work from the respondent company. The Tribunal therefore finds that both claimants are entitled to one weeks notice only. Accordingly, the Tribunal awards Claimant A the sum of €616.00 and Claimant B the sum of €605.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)