EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Rolandas Ivaska – appellant RP78/2014
Steel Solutions (NI) Limited – respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr F. Moloney
Ms M. Mulcahy
heard this appeal at Dublin on 2nd April 2015
Appellant(s): In person
Respondent(s): Company representative
The decision of the Tribunal was as follows:-
The appellant commenced his employment as a steel erector in 2006. In 2011 he discovered that his employer had in 2010 dissolved the original company he was employed by. The company he then worked for had the same name as the original but with ‘(NI)’ added, as above. The company representative consented to amending the title of the respondent. From the start of his employment he worked on sites covering the whole island of Ireland. He estimated that 60% of his work was in the Republic. This continued to be the case after the change of employer. He continued to be paid in euro and his tax was paid in the Republic. On one occasion he worked on a site in England. He resides in Dublin.
On 15th January 2014 he received a letter from the respondent company which explained that there were no projects in Ireland (North or South) but there was work for the appellant in Great Britain. A refusal of this work by the appellant was to be considered a resignation.
A company representative gave evidence that the appellant refused to work in Great Britain. During a phone call on 17th January 2014 the witness offered the claimant work in the factory at Derrylin, Co Fermanagh. He refused this work and sought a redundancy payment which the respondent refused on the basis that there was a position available to him.
The Workplace Relations Commission form filed by the appellant described the employer as set out above but without ‘(NI)’. No point was taken on this by the respondent when filing the T2 and during the hearing the respondent’s representative very fairly conceded that while the company was misdescribed it was always aware of the case he did not object to the titled being amended. Accordingly the Tribunal amended the title of the proceedings.
The Redundancy Payments Act 1967 (as amended) Section 7 2— For the purposes of subsection (1), an employee who is dismissed by reason of redundancy if for one or more reasons not related to the employee concerned 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, or
The Tribunal is satisfied that the appellant’s place of employment was the island of Ireland and the purpose for which he was employed was steel erection on site. The Tribunal is therefore of the view that he is prima facie entitled to redundancy. The next question is whether he is disentitled by virtue of section 15 of the Act (as amended) as follows:
- —(1) An employee shall not be entitled to a redundancy payment if
(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract ,
(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and
(d) he has unreasonably refused the offer.
(2) An employee shall not be entitled to a redundancy payment if
(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,
(c) the offer constitutes an offer of suitable employment in relation to the employee,
(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and
(e) he has unreasonably refused the offer.
The Tribunal is also satisfied that the offer of work in the factory involved work in a different capacity and place as his job was steel erection onsite and not factory work. Section 15 (2) applies only where an offer is made ‘in writing’. The offer of work in the factory was not made in writing and is not covered by section 15 (2).
The offer of work in Great Britain was an offer of similar work but the Tribunal noted that the appellant worked in Great Britain once, but only once before. Given that his place of employment was the island of Ireland section 15 (1) does not apply. The Tribunal is also satisfied that for family reasons the offer of employment was not ‘suitable employment to the employee’. The Tribunal is satisfied that he did not unreasonably refuse the offer.
The Tribunal is satisfied that a redundancy situation occurred and that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following information:
Date of Birth:
Date of Commencement: 1st June 2006
Date of Termination: 10th January 2014
Weekly Gross Pay: €616.25
Estimated Redundancy Lump Sum: €9,744.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period. It should be noted that a ceiling of €600.00 applies to payments from the Social Insurance Fund.
Sealed with the Seal of the
Employment Appeals Tribunal