EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Noeleen Fleming – appellant
RP339/2015
against
Dennis Forde – respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr D. Moore
Mr N. Dowling
heard this appeal at Dublin on 11th August & 11th October 2016 and 12 January 2017
Representation:
Appellant: Ms Cathy McGrady B L instructed by
Patrick W McGonagle & Co., Solicitors, 3 North Street, Swords, Co Dublin
Respondent: Warren Parkes Solicitors, Suite 317, The Capel Building,
Mary's Abbey, Dublin 7
The decision of the Tribunal was as follows:
Appellant’s Case
The appellant commenced employment as a hairdresser in Clery’s department store in central Dublin on St Valentine’s Day 2000. While her employer changed in early 2015 the appellant retained all her statutory rights and status as an employee under a transfer of undertaking agreement. Apart from a brief spell when the department was flooded when the appellant worked elsewhere she was permanently based in the retail outlet. Her employer had a presence there commonly labelled as a concession store.
On 12 June 2015 the department store where the appellant had a concession closed without notice. The appellant was not at work that day and three days later received a general letter from the respondent stating inter alia …we are unable to trade for the foreseeable future. Therefore we are unable to employ the appellant at this time. We do plan to start trading again and plan to reinstate employment.
On 13 July the appellant submitted a signed and completed RP9 redundancy form to the respondent. In response the appellant received a letter from the respondent giving her counter-notice on the grounds that I reasonably expect to be able to provide you with a period of employment of no less than 13 weeks.This period of employment will begin within four weeks that is on 17 August 2015. Correspondence between the parties continued with a further counter-notice but no offer of employment was received by the appellant. She again sought a redundancy payment but this was declined by the respondent through his legal representatives.
The appellant in acknowledging she was invited to attend meetings from the respondent in July and August accepted she did not do so for several reasons.
Respondent’s Case
The respondent DF gave evidence. He took over the concession salon from his father-in-law as a sole trader. There were no problems and all the employees were happy.
As soon as Clery’s closed he started looking for an alternative place to trade. He advised his employees to sign on or go to Rathmines. He thought he was doing the right thing.
The appellant did not want to go to Rathmines. In his counter-notice to her request for redundancy he mistakenly offered her work from 17 August 2015. He should have said 10 August 2015. The ILAC salon opened on 24 August 2015.
A senior stylist gave evidence. She has worked for the respondent and the previous owner of the business for about 27 years.
When Clery’s closed on 12 June 2015 all the respondent’s staff at that location were panicked and shocked. The respondent said: “Don’t worry! We will get a place.” She went to Rathmines to work in the hairdressing salon owned by the previous owner. She worked her usual 4 days a week there. When the respondent opened a new salon in the ILAC she went to work there.
The former owner of the Clery’s concession salon gave evidence. He transferred the concession salon to DF, the respondent, in early 2015. He had opened a salon in Rathmines. It was a big salon but it was hit hard by the recession. After Clery’s closed he was anxious to get the staff and the clientele to Rathmines. It takes years of hard work to build up a clientele and he wanted to keep the clients. He would give them work whenever their clients booked appointments. He phoned the appellant because he wanted her to bring her clients to Rathmines. He accepted that the appellant was not, at this time, his employee.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case. It is clear that the appellant and the respondent enjoyed a good working relationship and that the termination of the appellant’s employment resulted from an event that was outside the control of either.
Following a period of lay-off the appellant served the respondent with a RP9 form and thus formally started the redundancy process. In his counter-notice the respondent said: ‘I reasonably expect to be able to provide you with a period of employment of no less than 13 weeks’. However, this was not followed up with an actual offer of work.
In all the circumstances, the Tribunal is satisfied that a redundancy situation exists in this case and finds that the appellant is entitled to a redundancy lump sum based on the following information:
Date Employment Commenced: 14 February 2000
Date Employment Terminated: 12 June 2015
Gross Weekly pay: €338.00
This award is made subject to the appellant having been in insurable employment during the relevant period. The appeal under the Redundancy Payments Acts, 1967 to 2007, succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)