EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Michael Sweeney RP871/2012
Healy's Investments Limited
Healy Brothers Limited t/a Healy Bros
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. K.T. O'Mahony BL
Members: Mr. P. Casey
Mr. J. Flavin
heard this case in Cork on 31 March 2014
Mr Frederick Gosnell, Frederick V Gosnell, Solicitors,
Pembroke House, 2 Pembroke Street, Cork
Ms. Rachel O’Flynn BL instructed by
Mr. Alan McGee, 3 Willowbank, Church Road, Blackrock, Cork
for the first respondent
Ms. Sophie Crosbie (IBEC) for
Ms. Anne Cosgrove, Lagan Cement Limited,
for the second respondent
The decision of the Tribunal was as follows:-
The parties in the employment relationship between November 2007 and March 2009, on which the claims herein are based will be referred to as the employee and employer.
Summary of Evidence
The first respondent’s representative accepted that her client was the employer at the time of the employee’s dismissal on9 March 2009. Some assets of that business and the company name were transferred to the second respondent in April 2010, some thirteen month’s subsequent to the employee’s dismissal. The employer company then changed its name to that of the first respondent herein.
The employee was employed by the employer from 27 November 2000 until his employment was terminated by the employer by reason of redundancy on 9 March 2009.
The employee successfully prosecuted three other claims before a rights commissioner in December 2009 including one under the Unfair Dismissals Acts. When the employer’s appeal on the three decisions/recommendation of the Rights Commissioner came on for hearing before the Tribunal on 9 May 2011, the employer withdrew the appeals under both the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994 and 2001. On the appeal under the Unfair Dismissals Acts the Tribunal determined that the employee’s “selection for redundancy was unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal varies the Rights Commissioner’s Recommendation ref: r079910-ud-09JOC and awards the employee €20,000 in compensation under the Unfair Dismissals Acts, 1977 to 2007. This award is in addition to the monies already paid to the employee by the employer.” This determination issued on 9 December 2011.
On 6 March 2012 the employer forwarded a cheque in the sum of €23, 692.00 to the employee in respect of the three awards (one by the Tribunal and the other two by the Rights Commissioner) made in his favour.
In reply to a query from the employee’s representative the Tribunal secretariat by letter dated 25 April stated that “the compensation was in addition to monies received in relation to a redundancy payment.” The employee now claims that he should receive a redundancy lump sum payment and that this payment remains outstanding.
The employer (the first respondent) accepts that it was the employee’s employer at the time of his dismissal on 9 March 2009.
There was no claim/appeal for a redundancy lump sum payment before the Tribunal on 9 May 2011. Furthermore, no evidence was adduced at the hearing of the unfair dismissals case on that date as to whether the employee had or had not received a redundancy lump sum payment on the termination of his employment. The award of €20,000.00, made by the Tribunal in that case (ud521/2010), was to be the minimum in respect of his dismissal and that no deductions were to be made therefrom in respect of any other monies that might have been paid to the employee at the time of the termination of his employment.
While the employer’s representative contended that the employee’s claim under the Redundancy Payments Acts should be dismissed on a number of grounds: that it is statute barred and/or that it should be dismissed under the rule in Henderson v Henderson and/or that the employee should be estopped from pursuing the claim under the Redundancy Payments Acts. The Tribunal can deal with the matter under the statutory time limits for lodging claims under those Acts. The appeal/claim under the Redundancy Payments Acts, having been lodged with the Tribunal in late July 2012, more than three years and four months after his dismissal on 9 March 2009, is outside the statutory time limit for making such a claim. Furthermore, subsection (3) of section 24 of the Redundancy Acts has no application to the facts herein as the employee was well aware of the identity of his employer at the time of his dismissal. Thus, the Tribunal has no jurisdiction to hear the claim under the Redundancy Payments Acts.
Due to the length of his service with the employer the employee was entitled to four weeks’ pay in lieu of notice. The employee maintained that one of the four weeks’ pay he had received was in respect of a week in hand held by the employer and that accordingly he was entitled to one further week’s pay in lieu of notice under the Minimum Notice and Terms of Employment Act. At the initial hearing on 9 May 2011 the employee’s evidence was that he was told on the Tuesday morning (10 March 2009) that he was getting his redundancy and four weeks’ notice. Thus, the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, is dismissed against the employer/the first respondent. While he might have been due the week’s pay in hand, any claim under the Payment of Wages Act would now be far outside the statutory time limit for making such a claim to the Rights Commissioners Service.
The claims against the second respondent are dismissed.
The Tribunal does not consider that the employee was being frivolous or vexatious in bringing these claims. Thus, it will not make an award against the employee under regulation 19 of S.I. 24/1968 Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 in favour of either of the respondents..
Sealed with the Seal of the
Employment Appeals Tribunal