EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
John Gallagher – Appellant RP547/2013
Donnybrook Inns Limited T/A Kielys Of Donnybrook - Respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. R. Prole
Mr. J. Dorney
heard this appeal at Dublin on 3rd June 2014
Appellant: Mr. Jamie Sherry, Business & Commercial Solicitors, Leeson Chambers, 32 Lower Leeson Street, Dublin 2
Respondent: Mr. Frank Drumm B.L., Ms. Oonagh Meade, Kelly Kennedy & Co, 22 Upr. Mount St., Dublin 2
The decision of the Tribunal was as follows:-
The appellant was employed by the respondent company as an assistant bar manager. In 2012 the appellant’s hours were reduced to half of his normal hours. He served an RP9 form and the employer did not serve counter notice as required by section 13 of the 1967 Act.
There was some argument as to whether the reduction in hours/pay constituted statutory short time as in section 11 of 1967 Redundancy Payment Act as amended. There were also some imperfections on dates put on the appellant’s RP9 form. The appellant provided the employer with a letter of resignation.
Neither party complied with technicalities of the Act and the Tribunal is not basing its decision on the more technical issues.
Apart from statutory short time the Tribunal has long recognised “non-statutory short time” where pay/hours of work were reduced by less than 50%. It is well settled law following decisions of the Court of Appeal of England and applied by this Tribunal for four decades, that a substantial unilateral reductions in hours or pay amount to a fundamental breach of contract. In such circumstances an employee has the option of accepting the breach of contract and working at reduced hours of pay or treating the breach as a “repudiation of the contract” as would “entitle” him to terminate it under section 9(1)(c) of the Redundancy Payments Acts 1967.
In the circumstances the Tribunal finds the appellant is entitled to a lump sum payment under the Redundancy Payments Acts 167 to 2003 based on the following:
Date of Birth: --
Date of Commencement: 2nd September 1995
Non Reckonable Service: Nil
Date of Termination: 6th October 2012
Gross Pay: €728.80
Amount of Redundancy Payment: €21,132.00
This award is made subject to the appellant having been in employment which is insurable for all purposes under the relevant Social Welfare Acts.
Sealed with the Seal of the
Employment Appeals Tribunal