EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Thomas Justin -appellant
ATR Truck Rentals Limited -respondent
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: Ms J. McGovern B.L.
Members: Mr J. O'Neill
Mr C. Ryan
heard this appeal at Dublin on 20th February 2014
Appellant: Mr. Richard Grogan, Richard Grogan & Associates,
Solicitors, 16 & 17 College Green, Dublin 2
Respondent: Mr. K of the company
Summary of the case:
The appeal under the Unfair Dismissals Acts came before the Tribunal by way of an employee appealing against a Rights Commissioner Recommendation which stated that the claim failed, as the appellant was not dismissed by the respondent. The appeal before the Tribunal was withdrawn at the outset of hearing. Accordingly, the Recommendation of the Rights Commissioner stands (reference: r-124795-ud-12/SR).
The Tribunal heard from both parties in relation to the direct claims under the Redundancy Payments Acts and the claim under the Minimum Notice and Terms of Employment Acts.
The appellant was employed by the respondent company from January 1999 as a driver. The employment was largely uneventful until late 2011/early 2012. During 2011 a number of redundancies were implemented on a last in, first out basis. It was the respondent’s case that the appellant spoke with the Transport Manager and Mr. K of the company in December 2011. The appellant said that if a further reduction in numbers was required, he would be willing to leave the employment in the new year in order to allow remaining staff keep their positions, as he was due to retire the following year in any event. The appellant’s offer to leave the employment was accepted by the company and it was agreed his employment would end in February 2012. No redundancies occurred in the company in either December 2011 or January 2012 but overall staff numbers have reduced from 27 to 14.
It was the appellant’s case that he had a general discussion in December 2011 about the fact that he was nearing retirement. When he attended for work one day in February 2012 he was asked to wait to be assigned work. He was subsequently told that there was no work and he received his P45 a few weeks later.
Subsequently, in April 2012 the company received correspondence from the appellant’s representative in relation to the termination of the appellant’s employment. In response to this, the company wrote a letter stating that should the appellant have had a change of mind and would like to return to work his position would be made available to him. Mr. K from the company told the Tribunal that there was no discussion surrounding a redundancy payment at the time the appellant’s employment ended or in the weeks thereafter. Had the appellant accepted the offer to return to the employment, the position of an employee with only three months service would have been redundant instead. The appellant was offered his job back twice and a specific start date was provided to the appellant. The appellant stated that he was unable to take up the offer of work due to illness.
The issue before the Tribunal was whether the employer implemented the appellant’s offer to resign on a voluntary basis, or whether the employer decided to make the appellant’s position redundant. In the circumstances having heard the case set out by both parties, the Tribunal accepts the position of the employer that the custom and practice in situations of redundancy was last in, first out. The appellant was the longest serving member of staff and therefore his position would not have been selected for redundancy on this basis when there were a number of other junior drivers’ positions that would have satisfied the requirements. There was however a surplus staff situation and this was resolved by the implementation in February 2012 of the appellant’s offer of voluntary resignation. The Tribunal heard no evidence that during the discussion in December 2011 or during the period of notice and intervening period afterwards that the appellant sought a redundancy payment. The first time such a payment was sought was in April 2012.
In the circumstances the Tribunal does not find that the appellant is due a redundancy payment. Accordingly, the appeal under the Redundancy Payments Acts, 1967 to 2007, is dismissed. Having found that the appellant resigned the Tribunal must find that no claim arises under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal