EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Nuala Barrett RP664/2013
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Mr. J. Hennessy
Mr. D. McEvoy
heard this appeal in Cork on 27 November 2014
Ms Margaret Healy,
Independent Workers Union,
55 North Main Street,
Mr. Diarmuid Cunningham instructed by
Ms. Maria Daly,
Employee Relations Man
Model Farm Road,
The decision of the Tribunal was as follows:-
Summary of Evidence
Dismissal was in dispute in this case.
The appellant worked as a home help with the respondent over a long number of years. Following talks at national level, home helps became employees in or around August 2000. The appellant was given a contract of employment for one hour per week but worked in excess of this. The number of hours she worked per week varied. The respondent produced a schedule of the average hours per week worked by the appellant from 2002 to 2011 and the weekly hours worked in the period 2007 to 2011 averaged out at 5.2 hours per week over those years. The appellant disputed these figures.
The client the appellant was caring for was hospitalised in November 2011 and did not return to her home again. The appellant made calls to the respondent’s Home Help Coordinator (HHC) seeking work. The appellant was offered work on 3 February 2012 but she advised that due to having to undergo an upcoming medical procedure in hospital she would not be available for work from 14 February 2012 and she undertook to inform HHC when she became available again. She became available for work in or around 10 April 2012. By way of letter in late May 2012, in response to a request from HHC, the appellant indicated that she was available for work between the hours of 8.00am and 10.30am. The appellant’s position was that she had made several phone calls seeking work but did not receive any. In June 2012 the appellant submitted an RP9 to the respondent. The respondent’s position was that it had plenty of work to offer but none it could offer to the appellant because of her limited hours of availability, because she was only available for work within walking distance of her home as she was unable to drive and furthermore, because caring for some clients required special skills. The respondent returned the RP9 form. It was not a redundancy situation. The appellant’s evidence to the Tribunal was that she was also available for work between 7.00pm and 9.00pm but omitted to indicate this in her letter of late May 2012 to the respondent.
HHC wrote to the appellant on 27 July 2012 asking if she wished to remain available for work, explaining that her limited hours of availability as well as the limited area in which she would work limited her options for placement and indicated that if she wished to continue in the employment she would endeavour to offer a placement once an appropriate client was in need of home help. The appellant neither replied to this nor to HHC’s further letter of 23 August 2012 again enquiring if the appellant wished to remain in the employment. On 23 October 2012 the Home Help Representative of IWU wrote to HHC pointing out that the appellant had not received any work for over 12 months and indicating that the appellant was entitled to a redundancy payment if work was not available for her. HHC communicated directly with the appellant as IWU does not have a negotiating licence.
At a meeting between the parties on 4 January 2013, HHC indicated to the appellant that she hoped to have work for her within a month. However, work that fit with the appellant’s availability did not come on stream until 26 February 2013 and was for half an hour in the evenings. The appellant felt that it was an insult to the patient and was advised by her union that she need not accept it. In response to queries and applications from the appellant, HHC and the Employee Relations Manager respectively confirmed to her by letters dated 17 July 2012 & 23 March 2013 that a redundancy situation did not exist.
The respondent’s position was that it did not dismiss the appellant and she was still on its books as an employee. Its position was that a redundancy situation did not exist.
Having considered the evidence the Tribunal unanimously finds that the respondent did not dismiss the appellant. A redundancy situation did not exist. Work was available but the appellant had confined her availability to narrowly limited hours and location. Accordingly, the appeal under the Redundancy Payments Acts, 1967 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal