EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Derek Bergin – appellant RP869/2013
Wicklow County Council – respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr D. Peakin
Mr T. Brady
heard this appeal at Dublin on 7th April 2014
Appellant: Ms. Nora Pat Stewart B.L. instructed by, Coughlan White & Partners, Solicitors, Main Street,
Newbridge, Co. Kildare
Respondent: Mr. Eamonn Hunt, Local Government Management Services Board,
Olaf House, 35-39 Ushers Quay, Dublin 8
Background and summary:
The appellant was employed by the respondent on three separate contracts which ran concurrently. The first and third contracts stated that the contract was for the specific purpose of maternity leave cover. The second contract was a fixed-term contract for 12 months. However, when the appellant sought a redundancy payment upon the termination of his employment he was informed by the respondent that as the staff member was now returning to the post the job continued to exist and such a situation did not allow the appellant to be considered for a redundancy payment.
It was the respondent’s case that the contracts were explicit in their nature and that the appellant was not entitled to a redundancy payment. The respondent relied on S.7(2) as amended. It was the appellant’s case that he had three successive contracts and that he carried out the same role of Assistant Fire Officer across all three contracts. Ms. S was the person who was on maternity leave for the duration of the first and third contract. Ms. S held the role of Senior Assistant Chief Fire Officer and the appellant would not have been able to perform this role.
It was the respondent’s case that as an organisation they may not replace at the level of Senior Assistant Chief Fire Officer but someone is employed to carry out the workload. It was the respondent’s case that the work undertaken by the appellant was that of Senior Assistant Chief Fire Officer. This was disputed by the appellant.
The Tribunal heard evidence from the Chief Fire Officer who was appointed during the last two months of the appellant’s second contract. He was briefed by the Acting Chief Fire Officer. It was his understanding that the appellant at that time was working on special projects under Ms. S and as her assistant. The expectation was that this work was coming to an end.
The third contract was issued when Ms. S was commencing a second period of maternity leave. Ms S was the second Senior Assistant Chief Fire Officer to commence a period of maternity leave at that time. Consequently, the Chief Fire Officer applied for the appellant to be retained while Ms. S was on maternity leave. At that time he enquired of both the appellant and Ms. S if it was possible for the appellant to take on the duties of Ms. S. Ms. S had concerns about a certain aspect of the role and the Chief Fire Officer undertook that part of her role. The appellant carried out the office work part of her role very effectively. Another employee (RP) was appointed into the role of Acting Senior Assistant Chief Fire Officer to cover for Ms. S’ colleague. The staffing levels remained the same in June 2013 as they were in September 2012. The appellant’s date of termination was the day that Ms. S’s maternity leave ended.
It was the appellant’s evidence that he commenced employment on 30 December 2010 as an Assistant Fire Officer and his grade remained unchanged throughout the duration of his employment. The role he undertook was varied. The work was team-based but he gained experience in different aspects of the work and special projects but his position remained unchanged.
The appellant stated that he did not carry out Ms. S’ work when he was working under the first contract as he would have been unable to do the work of a Senior Assistant Chief Fire Officer. He reported to another Senior Assistant Chief Fire Officer at that time.
A business case was made for the second contract and the appellant continued to carry out his work. He performed some work on projects but this was not the full extent of his duties.
During the third contract there were small aspects of Ms. S’ role that he was allowed to take on. However, the other seniors carried out the remainder of the role. The appellant did understand that when Ms. S returned the contract would end.
During cross-examination the appellant stated that whatever the contracts stated regarding the purpose of his role it actually remained unchanged. The appellant also noted that another employee (RP) was placed in the position of Acting Senior Assistant Chief Fire Officer.
The Tribunal is satisfied that the appellant did not carry out the role of Senior Assistant Chief Fire Officer (Ms. S’ role). The appellant may well have undertaken certain duties of Ms. S’ role but it is clear from the evidence of the Chief Fire Officer that he himself undertook elements of Ms. S’ role. The respondent found a way to retain the appellant on two occasions. The Tribunal is also satisfied that the appellant carried out a similar range of work across the three contracts: that of an assistant fire officer and that there was no change in the role the appellant performed throughout.
Accordingly, the Tribunal finds that the appellant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:
Date of Commencement: 30 December 2010
Date of Termination: 21 June 2013
Gross Weekly Pay: €839.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
It should be noted that payments from the social insurance fund are limited to a maximum of €600.00 per week.
Sealed with the Seal of the
Employment Appeals Tribunal