EMPLOYMENT APPEALS TRIBUNAL
James Kinsella (claimant)
Arthur McGuinness T/A A Mc G Enterprises Limited (respondent)
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. A. O'Mara
Mr J. Jordan
heard this claim at Dublin on 23rd October 2015
Claimant(s) : Mr. Andrew Whelan B.L. instructed by Mr Martin A Kennedy, Martin A. Kennedy & Co, Solicitors, The Diamond, Malahide, County Dublin
Respondent(s) : Mr. Mark O’Connell B.L. instructed by Mr Richard Dennehy, Richard Dennehy & Co Solicitors, 189a Botanic Road, Glasnevin, Dublin 9
The determination of the Tribunal was as follows:
Summary of evidence
This claim was heard in conjunction with UD1205/14, RP679/14.
The claim under the Unfair Dismissals Acts, 1977 to 2007, was withdrawn at the outset.
The respondent operates a barber shop and the claimant commenced employment in October, 2006 working as a barber.
Giving evidence, the claimant told the Tribunal that he commenced his employment with the respondent on 14th October, 2006. He stated that the respondent got in touch and said that he had an offer on the premises and would have to let both employees go. The respondent subsequently asked the claimant and EM if they would like to lease the premises from him. The first the claimant saw of the lease was Saturday 31st August, 2013 and was told to ‘sign now’. Both employees accepted the lease.
The claimant indicated that he had trusted the respondent when he said that they were getting a good deal at €750 per week for the lease. It subsequently transpired that some weeks they did not have any wages to take home after payment of the rent to the respondent, which is why the rent due went into arrears. After the claimant and EM vacated the premises, they obtained another location and are now trading from a different premises.
Under cross examination, the claimant stated that he did not initiate the idea of taking over the premises. He stated that the respondent told him that he could take a lease out or the respondent would be selling to another person.
EM, the only other barber working at this location, told the Tribunal that six months prior to 31st August 2013, the respondent (AMcG) told him that he was receiving purchase offers for the hairdressing premises. The respondent asked the claimant and the other member of staff, EM, would they be interested in leasing the premises going forward for €3,500 per month. The claimant and EM both agreed to take on the lease rather than face unemployment. AMcG’s wife called to the premises on Saturday 31st August 2013 with the lease and requested that the employees’ sign the lease or they would have no job the following Monday. Both employees signed the lease but subsequently went into arrears on the rent and vacated the premises. EM indicated that they traded at the premise from 9th September 2013 until 7th March 2015. It is submitted that a redundancy payment is due to both employees.
Under cross-examination, EM denied that he had been given the lease a month prior to signing it. He stated that he did not initiate the idea of leasing the premises and after 24 years working for the respondent he would have been happy to continue doing so as an employee until the respondent approached him on the matter of leasing.
The respondent, Mr. A. McG, told the Tribunal that both EM and JK initiated the idea of the lease. He indicated that he thought it was a great idea and drew up the lease, which they agreed to accept. He told them to go to a Solicitor to get it checked. It was signed on 1st September, 2013. It was around December 2013 when they stopped paying the rent.
Under cross-examination, AMcG stated that he resumed trading after the claimant and EM vacated the premises. He handed them the lease on 9th August, 2013 in the shop and denied that he told them that he was selling the barber shop. He had refused an earlier offer on the premises from another party and then both EM and the claimant asked to take out a lease. The claimant and EM told the respondent they did not feel the need to get a Solicitor to look over the lease. AMcG’s wife collected the lease from them. He stated he was not exactly sure if it was the 9th August when he gave the employees the draft lease. He felt the rent requested was fair based on the takings of the barber shop.
Mrs. A McGuinness gave evidence and stated that she was involved in the business. Following an offer on the premises, she told the Tribunal that EM suggested leasing the premises from the respondent, in or around June/July, 2013. Mrs. McGuinness told the Tribunal that she brought the lease to the shop around June/July and told both employees to study it and to get a Solicitor. After 4/5 weeks she went to the shop to collect the lease and a customer signed as a witness. The claimant and EM had not been told that the shop would be sold. They had never complained that the rent was too high.
- Section 7 (2) (a) of the Redundancy Payments Act states:
(2) for the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to –
(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed,
As the employer ceased carrying on business at the premises, Section 7 (2)(a) applies.
- The Tribunal then had to consider the question of dismissal, which is defined in Section 9(1):
for the purposes of this Part and employee shall, subject to this Part, be taken to be dismissed by his employer if but only if –
(a) the contract under which he is employed by the employer is terminated
(b) where under the contract under which he is employed by the employer he is employed for a fixed term, that term expires without being renewed under the same or a similar contract, or
(c) the employee terminates the contract under which he is employed by the employer without notice in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer’s conduct.
Another relevant provision is Section 21 (1):
Where, in accordance with any enactment or rule of law, any act on the part of an employer or any event affecting an employer (including, in the case of an individual, his death) operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Act be treated as a termination of the contract by the employer, if apart from this subsection, it would not constitute a termination of the contract by him.
While there was an element of mutual agreement at the ending of the employment, the Tribunal determines that the combined effect of Section 9(1), 9(1)(c) and 21(1) operates to make a finding of dismissal.
The Tribunal therefore finds that the claimant was dismissed by reason of redundancy and is entitled to redundancy based on the following criteria:
Date of commencement: 14th October 2006
Date of termination: 31st August 2013
Gross weekly pay: €417.30
Total due: €6,167.69
Sealed with the Seal of the
Employment Appeals Tribunal