UDD1931

FULL RECOMMENDATION

UD/19/14

DETERMINATIONNO.UDD1931

ADJ-00015126 CA-00019671-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

SURETANK LTD
(REPRESENTED BY PENNINSULA)

- AND -

DECLAN KILMARTIN
(REPRESENTED BY EAMONN DONNELLY)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Hall

SUBJECT:
1. An appeal of Adjudication Officer Decision no. ADJ-00015126.

BACKGROUND:

2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 8 (A) of the Unfair Dismissals Act, 1977 to 2015 on the 14^thof January 2019. A Labour Court hearing took place on the 29th May 2019.

The following is the determination of the Court: -

DETERMINATION:

This matter comes before the Court as an appeal by Declan Kilmartin (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 against his former employer Suretank Limited (the Respondent).

The Case

It is common case that the Appellant’s employment terminated on 5^thJanuary 2018 by reason of redundancy arising from a circumstance consistent with the circumstance set out in the Redundancy Payments Acts 1967 to 2015 at Section 7(2)(b. The Appellant has submitted that the alternative employment offered to him was unreasonable and has submitted that no engagement took place with his representative to consider an enhancement to the statutory redundancy terms paid to him upon the termination of his employment. No submission has been made that the Appellant was unfairly selected for redundancy.

It is common case that all relevant statutory payments under the Redundancy Payments Acts, 1967 to 2015 were paid to the Appellant upon termination

Relevant Law

Section 6(4) of the Act provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
- (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Act defines the term Redundancy as used in the Act in the following terms

“redundancy” means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971;

The Redundancy Payments Act, 1967 as amended provides at Section 7(2) (a) to (e) as follows:

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or
(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or
(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Conclusion of the Court

The Court is precluded, by operation of the Act at Section 6(4)(c), from determining that a dismissal which arises as a result of redundancy is unfair within the meaning of the Act. The appeal consequently, by operation of the law, cannot succeed. The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court

Kevin Foley
CH______________________
26th June 2019Chairman

NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.