EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Makysymillian Adanczyk UD980/2015
against
Naas Primary Care Campus Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr M. Noone
Mr N. Dowling
heard this claim at Dublin on 6th January 2017
Representation:
_______________
Claimant(s) : Mr. Diarmuid Murphy, Burns Nowlan Solicitors, 31 Main
Street, Newbridge, Co. Kildare
Respondent(s) : Mr John Barry, Management Support Services, The Courtyard,
Hill Street, Dublin 1
The determination of the Tribunal was as follows:
Summary of evidence
An application was made by the claimant at the outset under Section 39 of the Organisation of Working Time Act, 1997 to amend the name of the respondent. This application was granted by the Tribunal and the respondent name was amended as above.
The claimant was employed by the respondent as a General Operative from September 2009 until the business ceased trading on 16th July 2015. As a result, the claimant was made redundant. It was submitted that the respondent company was purchased by Company R and it was accepted that while the claimant should have been transferred under TUPE, Company R had refused to accept the claimant as an employee on the basis that family members would now be controlling the company. The claimant was the only employee apart from the Financial Controller who was also subsequently made redundant.
The claimant’s representative stated that the claimant was unfairly dismissed. While the respondent made a redundancy payment to the claimant, the cheque was not cashed by the claimant on the basis that he felt he was unfairly dimissed.
The respondent submitted that under Section 7 (4)(a) of the Redundancy Payments Acts, Company R were entitled to rely on family as employees in taking over a business. It was noted that no claim was submitted against Company R or under the TUPE regulations. The case for the Tribunal to consider was one of unfair dismissal.
The respondent referred to a precedent case of Nolan v O.C.S. Support Services (Ireland) Ltd. RP192/2001.
Determination:
The Tribunal have carefully considered the evidence and submissions.
Evidence was adduced by the respondent that the claimant was replaced by a family member.
Section 7 (4) (a) of the Act states:
[(4A) In ascertaining, for the purposes of subsection (2)(c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer's family— father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister.]
As this is the case, no unfair dismissal occurred. Accordingly, the claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)