EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
John Desmond – appellant RP150/2013
West Cork Civil Engineering Limited - respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. McNally
Members: Mr. P. Casey
Mr J. Flavin
heard this appeal at Cork on 8th April 2014
Appellant(s) : In person
Respondent(s) :Mr Aidan Phelan, Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
The decision of the Tribunal was as follows:-
Summary of Evidence
The director of the respondent company gave evidence to the Tribunal. The appellant was put on lay off on the 20 July 2012 due to a lack of work. The appellant returned to work on the 16 October 2012 and was put on a further period of lay off on the 21 December 2012. The witness explained that the appellant telephoned him on 31 August 2012 and he told him he would have work for him however the appellant said he would not return and wished to claim redundancy. During September the respondent attempted to contact the appellant about returning to work. At that time the respondent had work for the appellant repairing pontoons and other work which was contracted to him following storm damage. A letter from the respondent dated 13 September 2012 was opened to the Tribunal. In that letter the respondent stated that work was due to commence the following week and asked if he was available. The appellant’s evidence was that he never received that letter and that the letter opened to the Tribunal was unsigned.
The appellant returned to work on the 16 October 2012. He continued working until the second period of lay off on the 21 December 2012 a period of nine and a half weeks. Had the appellant returned when he was initially contacted in September he would have been in employment for a period of fourteen and a half weeks. The respondent notified the appellant that he could return to work on the 21 January 2013 as they had steady work. This offer is referenced in a letter dated the 31 January 2013, which was opened to the Tribunal. The appellant submitted a redundancy claim to the Tribunal on the 15 January 2013. A second witness for the respondent confirmed she had written the letters referred to on behalf of the respondent.
The parties agreed the appellant’s commencement date of the 2 February 1996. The appellant and the respondent director had been close personal friends for many years. His role was a general operative. He was put on lay off on the 20 July 2012 and telephoned the respondent at the end of August seeking a return to work. There was no work at that time and he suggested he would claim for redundancy to which the respondent replied that he may as well. The respondent denies he made that comment. The appellant received a telephone call on the 6 September 2012 offering him work from the 11 September 2012. He assumed the work was not permanent and only three days per week. The appellant sent his RP50 form to the respondent on the 19 September 2012 as he believed that the respondent could not offer him thirteen weeks continuous employment. The respondent refused to sign the redundancy claim. He returned to work on the 16 October 2012 and received a further lay off notice on the 21 December 2012. The appellant recalled receiving a telephone call at the end of January about work being available but got no explanation or description of the work. The appellant in his evidence stated he never received the letter dated the 13 September 2012 and received no telephone calls or messages on the 9, 10 and 11 September 2012.
The Tribunal considered section 12 (1) of the Redundancy Payments Act, 1967 as amended which states;
“12- (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless-
(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and
(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay off or short-time, he gives to his employer notice ( in this part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of the lay – off or short- time.”
The Tribunal is satisfied that more than four weeks had elapsed after the cessation of the first lay off period (20th of July 2012 to 16th of October 2012) whereby the appellant was not entitled to claim for redundancy in respect to this first period of lay off. The only relevant period of lay off to be considered is that which commenced either on the 21 December 2012 or the 31 December 2012. The Tribunal notes that the respondent wrote to the appellant on the 21 December 2012 confirming a period of lay off commencing the 21 December 2012.
The appellant served an RP 9 form on the respondent after a period of three weeks lay off thereby not satisfying the criteria of four consecutive weeks or more to claim for a redundancy payment. The Tribunal further noted that the appellant refused the offer of returning to work in January 2013.
The Tribunal find that the claim under the Redundancy Payments Acts, 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal