EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Ian Toomey -appellant RP1071/2013
Hemblestan Limited T/A Dungarvan Nissan
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 D. Donovan B.L.
Members: Mr J. Hennessy
Ms S. Kelly
heard this appeal at Waterford on 16th January 2015
Appellant: Mr Kieran O'Connell, Joseph P Gordon & Co,
Burgery, Dungarvan, Co Waterford
Respondent: In Person
Summary of Claimant’s Case:
The claimant gave evidence that he commenced his training as an apprentice mechanic with the respondent on 10th November 2008 and completed his apprenticeship on 30th November 2012. Two weeks prior to the completion of the apprenticeship on 30th November 2012 he received a written notice from the respondent that his employment would terminate by reason of the end of his apprenticeship.
The claimant said he received a telephone call from the respondent on 11th December 2012 to come in. He went in on 11th December 2012 and when he arrived he was asked to look at a vehicle. He received a letter dated 28th June 2013 stating that his employment had resumed on 19th December 2012. On 5th July 2013 he was told there was ‘no work for you’ and he finished on 13th July 2013.
The claimant said his gross weekly salary was €439.75.
In cross-examination the claimant accepted that when he came back in December and for some time thereafter he was covering for another mechanic who was out on sick leave.
A submission was made by the legal representative of the claimant to the effect that because the claimant’s employment had been resumed he was in employment for more than one month after the end of his apprenticeship and was entitled to a redundancy payment and pay in lieu of notice for the statutory notice period applicable to a period of employment from 10th November 2008 to 12th July 2013.
Summary of Respondent’s Case:
JF, Director for the respondent, told the Tribunal he took on the claimant as an apprentice mechanic at the request of the claimant’s father. He said in 2008 things became very difficult in the motor trade as a result of the recession but nonetheless he did his best to keep the claimant on in order that he could finish his apprenticeship. He even got him into FÁS in Cork when there were difficulties in Waterford.
At the end of the apprenticeship after serving the appropriate written notice on 16th November 2012 he let the claimant go having given him his P45 and only took him back some weeks later to cover for another mechanic who was out on sick leave. The work was casual until 2nd January 2013 when the claimant was put back on the payroll.
He let the claimant go on 12th July 2013 after serving one week’s notice because he had no work for him.
Having considered the evidence of the parties adduced at the hearing and the legal submission of the representative for the claimant the Tribunal finds that the claimant’s employment was terminated on 30th November 2012 by reason of the end of his apprenticeship and in accordance with section 7(4) of the Redundancy Payments Act 1967 he was not entitled to a redundancy payment.
Section 7(4) provides as follows:-
“Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.”
The Tribunal, of its own motion, then considered whether the claimant was entitled to the benefit of section 9(2) of the Act of 1967.
9(2) provides as follows:-
“An employee shall not be taken for the purposes of this Part to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and---
a) in a case where the provisions of the contract as renewed or of the new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract, or
(b) in any other case, the renewal or re-engagement is in pursuance of an offer in writing made by his employer before the ending of his employment under the previous contract, and takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter.”
Regarding (a) above, any renewal or re-engagement of the claimant by the respondent did not take effect immediately on the ending of the claimant’s contract under his previous contract. The previous contract ended on 30th November 2012 and the new contract commenced on 11th December 2012. For the record the Tribunal is satisfied that the ending of one contract and the commencement of the other was not arranged by the respondent to frustrate any employment rights of the claimant.
Regarding (b) above, the offer in writing to resume employment was not made by the respondent before the ending of the previous employment.
Accordingly, the claim under the Redundancy Payments Acts 1967-2007 fails.
The claim under the Minimum Notice and Terms of Employment Acts 1973-2005 fails as the claimant was given his statutory entitlement of one week’s notice.
Sealed with the Seal of the
Employment Appeals Tribunal