FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES: KILCLOONEY PLANT HIRE (REPRESENTED BY MS. E.J. WALSH B.L. INSTRUCTED BY THOS. F. GRIFFIN & CO, SOLICITORS) - AND - PATRICK MCCORMACK (REPRESENTED BY O'DOWD SOLICITORS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00036094 CA-00047303-004. DETERMINATION: Following a week’s holiday, the Complainant worked a Monday, Tuesday and Wednesday. On the last day, the Respondent collected the company van that the Complainant used. The Complainant argued that he had no means of getting to work and that, therefore, his job was gone and that he had been made redundant. The Respondent denies that there was a redundancy. A complaint by the Complainant under the Minimum Notice and Protection of Employment Act,1973-2005 , ‘the Act’, was decided by an Adjudication Officer, ‘AO’, not to be well founded. The Complainant appealed to this Court. Summary of Complainant arguments. On the third day of his short-time week, the Complainant was told that the Respondent needed the van that the Complainant used to get to and from work. The Respondent told him that he would have to make his own way to work. Previously, if the Respondent needed the van, he left a 4x4 vehicle in its stead. The Complainant had no way of getting to work. He enquired of his employer how he was to get to work but heard no more. Given the nature of the relationship, he took this to mean that his job was gone. He sent an RP77 to the Respondent seeking a redundancy payment. He received no payment in lieu of notice and did not work again until 12 April 2021 when he started a new job. The Respondent company was in the process of winding down its operations in early 2021. It is understood that the Complainant was not replaced. The financial statement for 2021 shows a company in decline. The 2022 return is now overdue and the Collector General has several judgments against the beneficial owner. Further details regarding the company’s financial circumstances are provided to the Court. The Complainant always had the use of a company vehicle and had no vehicle of his own. The use of the van was an integral part of the contract of employment. The removal of the Complainant’s mode of transport was tantamount to his job being removed. No notice was paid. Summary of Employer arguments. The Complainant worked for the Respondent since 2008. His gross wage was €850 per week. As part of his employment he had the use of a company branded vehicle but did not have exclusive use of same. When the Complainant went on short time, as described, there was no discussion of redundancy and the option was not considered. On the last day of the Complainant’s first short time week, the Respondent told him that the van was needed and he was asked to leave it at the company premises. The Complainant replied that he would take the van home and it could be collected there. This was done and the Respondent removed the Complainant’s personal tools from the van. Without notice, the Complainant failed to turn up for work the following Monday. When he was telephoned, the Complainant told the Respondent that he had secured another job and would not be showing up. The Respondent subsequently saw the Complainant in a van owned by a competitor, Mr. Ciaran King, and the Complainant continued to work for Mr. King. The first time the issue of redundancy was mentioned to the Respondent was when WRC proceedings were commenced by the Complainant. The Respondent did not consider ceasing trading. The Complainant’s job was not terminated and there was work available. No redundancy existed. There cannot be an issue of notice payment due as the position was not terminated. The Respondent continues to trade. Witness evidence. Mr. Patrick McCormack. Mr. McCormack is the Complainant. The witness stated that, when access to the company van was removed, he had no access to any other vehicle in order to get to work. He said that he texted the Respondent on the following Sunday to advise that he was unable to attend work due to illness and had a telephone conversation on the following day, in which he repeated his difficulty in getting to work. The witness said that he sent an RP77 form the following October. He did not keep a copy. The witness said that his partner had a vehicle but she needed it, so it was not available to him. Another vehicle, a Vauxhall, was not roadworthy as there were problems with the clutch. The witness denied that he commenced another job immediately and said that he did not start work again until April. He denied that he drove a competitor’s van prior to that. In cross examination, the witness said that he had use of a van throughout his employment with the Respondent. The witness said that he engaged with the Respondent on the following Monday regarding his belief that he had been made redundant. He denied that the Respondent could have seen him driving the van of a competitor that day. He said that he qualified for Covid payments as there was no work available for him. He said he started to work for Mr. King in April. The witness said that he could not get his vehicle fixed straight away. He denied that he also had a Hi-Lux jeep, which he said belonged to his father. The witness accepted that there had not been any conversation regarding redundancy. When it was put to him that the company was still trading, the witness noted that he had not been replaced. The witness said that his sister had sent the RP77. He accepted that she was not present to give evidence to that effect. In response to questions from the Court, the witness stated that he lived six miles from his work. Mr. Declan O’ Grady. Mr. O’ Grady is the owner of the Respondent company. The witness stated that, due to the impact of the pandemic, it was necessary to put the Complainant on a three day week at the end of January 2021. He said that there was no question of the company winding down. The witness told how he had asked the Complainant to leave the company van in the workyard at the end of the third day but the Complainant had told him to pick it up at his house. He did so. The witness denied being told by the Complainant on the following Sunday that he was too ill for work the following day. He said that he contacted the Complainant on the Monday when he failed to show for work and that the Complainant told him that he had ‘gone working for somebody else’. He said that he had not been given any prior notice of this. The witness said that he did not believe that the Complainant only started working for Mr. King in the following April as he had seen him in one of Mr. King’s vans, (as a passenger and not, as stated in the Respondent submission, as a driver of the vehicle) on that very day, subsequent to his conversation with the Complainant. The witness denied ever having received an RP77. The witness said that there had never been any discussion about redundancy. The witness said that he believed that the Complainant had access to a Vauxhall car, a Toyota Hi-Lux and a small van. He knew that the Complainant’s father used the Hi Lux but he believed that it was available to the Complainant. In cross examination, the witness again denied having received any communication from the Complainant on the relevant Sunday. The witness accepted that he had never before removed the van from the Complainant. The witness stated that the preparation of 2022 accounts was with his accountant and he denied that there were indicators of the company winding down. The witness reiterated that he had seen the Complainant in a rival’s van on the day that he left the employment. In response to questions from the Court, the witness stated that the company’s workforce at the time consisted of the Complainant, the witness himself plus one part-time staff member. He said that the Complainant was not replaced and he, himself, had to spend more time working in the company, in addition to his farm work. He said that the company was under pressure but still profitable. The applicable law. Minimum Notice and Terms of Employment Act. Minimum period of notice. 4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. Deliberation. The above provisions of the Act are applicable when an employer terminates the employment relationship. In a parallel case involving the same two parties, the Court has found that the Complainant left this employment voluntarily. Accordingly, the terms of the Act are not applicable. Determination. The decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
