EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Employee - claimant UD555/2012
Employer - respondent 1
Employer - respondent 2
Employer - respondent 3
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B. L.
Members: Mr M. Carr
Mr O. Nulty
heard this claim at Monaghan on 16th January 2014
Claimant: Mr Rory O'Neill, Mallon, Solicitors, Main Street, Castleblayney, Co. Monaghan
Respondent: Ms. Catherine Day, Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
This case was heard in conjunction with an employer appeal of a Rights Commissioner decision under the Payment of Wages Act 1991 and the Terms of Employment (Information) Acts 1994 and 2001.
A separate case under the Organisation of Working Time Act 1997 was taken to the Rights Commissioner and appealed to the Labour Court. The Labour Court, in its decision dated the 9th of August 2013 determined that respondent 1 was the claimant’s employer. For the purpose of this claim the Tribunal hold that respondent 1 is the claimant’s employer.
Dismissal is in dispute in this case.
The claimant commenced employment at the respondent premises in 1994 as a forecourt manager. He worked continuously until his dismissal in February 2012. Respondent 1 was involved in the company for a number of years before he personally took over the business as of November 2011. There was no official consultation or documentation in respect of the transfers. The claimant never received a contract of employment or terms and conditions of employment.
In 2010 a new member of staff introduced himself to the claimant stating that he was the new assistant manager. He informed the claimant that he would be taking over two of his five weekly shifts resulting in the claimant going from a five-day to a three-day week. The claimant did not consent or agree to this new arrangement at any time with the previous employer or the respondent. A letter dated the 6th of September 2010 was provided to the claimant for Social Welfare stating that he was on temporary short-time.
The claimant’s working week was reduced to two shifts and finally down to one shift per week. Letters to that affect were given to the claimant by the assistant manager. The claimant was always ready and available for work and actively sought an increase in work.
On the 21st of February 2012 the claimant went to work as normal. An hour later the respondent came in and handed him an envelope. The envelope contained a P45 with a cessation date of the 7th of February 2012. The claimant asked what the P45 meant; to which the respondent said, ‘you’re finished.’ The claimant was not instructed to do anything with the P45. The claimant inquired about redundancy, his P60 and his outstanding wages; the respondent replied that ‘there’s no money, you’re not getting it.’ The respondent said he would look into his P60. The claimant finished his shift and left the premises. Three days later the claimant returned to collect his outstanding wages; there was no further conversation regarding his dismissal.
The claimant disputes having any conversation with the respondent concerning solicitors or Social Welfare.
The claimant instructed his solicitor to write to the respondent on the 28th of February 2012. The respondent was out of the jurisdiction so the previous employer (JmcC) (brother-in-law of the respondent) replied to the letter denying the claimant was dismissed and that in fact he was still rostered to work.
In March 2012 one of the office staff rang the claimant to ask why he was not on the roster, the claimant informed her that the respondent had let him go. There was rarely a roster up for the previous 6-7 months as there was only one other staff member.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
The claimant’s previous employer (JmcC) gave evidence of the transfer to respondent 1. JmcC handed the claimant his P45 on the 7th of February 2012 and instructed the claimant to give it to the respondent so he could be registered as an employee with the respondent. The P45 was for the previous company the claimant worked for before the respondent.
In 2010 and 2011 the claimant informed JmcC that reduced hours would suit him as he could do some better paid work with his brother-in-law and he was winding down coming close to retirement. JmcC offered him alternative work in different premises that might suit him better, but the claimant declined. At no stage did the claimant request to be returned to full-time hours. The claimant was given a contract of employment covering JmcC’s tenure. JmcC does not have a copy of this contract as it is with the liquidator. The letters written for the claimant for Social Welfare were composed without authorisation or instruction.
The respondent (AW) gave evidence. In December 2011 AW informed the claimant that he was taking over the business. The claimant continued to work as normal. AW received his P45 from the previous company and was informed that the claimant and another staff member had also been issued with a P45 in order for them to be re-registered to work for AW and the new business.
On the 21st of February 2012 AW asked the claimant for his P45 so he could be registered to him as an employee. The claimant said ‘no- I have to check a few things out with Social Welfare and my Solicitor…between your land and your jeeps I’ll pay the solicitor (€) and take it all.’ The claimant finished his shift and left the premises. He was rostered to work on the 28th of February but failed to appear for work.
The claimant was not dismissed and did not enquire about redundancy or request to be returned to full-time hours.
The Tribunal prefers the evidence of the claimant and accept that the claimant was dismissed on the 21st of February 2012 by the respondent. This dismissal was unfair in that fair procedures were not used and the overall treatment of the claimant by the respondent was very unsatisfactory.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €10,800.00 in compensation. The Tribunal limited it’s award as the claimant did not make reasonable efforts to mitigate his loss.
In the circumstances the claim under the Redundancy Payments Acts, 1967 to 2007 is dismissed.
The Tribunal award the claimant €3,600.00 being the equivalent to 8 weeks’ pay in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal
Employment Appeals Tribunal