EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Ben Taplin
against the recommendation of the Rights Commissioner in the case of:
Ben Taplin UD937/2015, PW270/2015
TE86/2015,
-v-
First Northern Ireland Limited
Ben Taplin UD936/2015, PW269/2015
TE85/2015, WT199/2015
-v-
Last Passive Ltd
t/a Aircoach
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
ORGANISATION OF WORKING TIME ACT, 1997
`
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. G. Mc Auliffe
Ms M. Mulcahy
heard this appeal at Dublin on 14th September and 22nd November 2016
Representation:
Appellant: Mr Mark Kavanagh, Independent Workers Union, 61 North Strand Road, Dublin 3
Respondent 2: Mr Allen Parker, c/o Last Passive Ltd t/a Aircoach, Unit 3, Airport Business Park, Dublin Airport, Co Dublin
This hearing came before the Tribunal by way of an appeal by a former employee against recommendations issued by a Rights’ Commissioner.
The determination of the Tribunal was as follows:
Preliminary Issue:
The Tribunal has carefully considered the evidence adduced. The Appellant comes before the Employment Appeals Tribunal on foot of a number of appeals against Rights Commissioners findings against two named entities: FNIL (the first named Respondent) and AC (the second named Respondent).
The Appellant has been making the case that the FNIL was not his employer and that AC was his employer. FNIL claims to be the employer whilst AC denies the relationship.
FNIL is a Northern Ireland based company and operates a cross-border bus service between Dublin and Belfast.
In 2012, FNIL took over the contract AC had been operating on the same route for some time. In July of that year the Appellant applied for and was successful in obtaining one of the driving positions which were advertised as part of the newly acquired contract.
FNIL is clear that from that time that it was his employer right from the start. The Appellant operated services which he had been previously familiar with as belonging to AC.
The paperwork provided to the Appellant during his employment was confusing as the names of both Respondents appear and have been used interchangingly and therefore created uncertainty.
FNIL cites the Appellant’s close involvement with the Union based in the FNIL premises in the North of Ireland as being extremely telling in his understanding that he was an employee of FNILs workforce. It is noted that the Appellant was a signatory of the in-house Union agreement which was drawn up for the workforce in Northern Ireland.
In furtherance of its case that the Appellant was managed by FNIL the Operation and Transport Manager for that entity (FNIL) gave clear evidence that she had the rostering function and was responsible for the operation of disciplinary procedures etc. This witness did however concede that the Appellant was paid through the second named Respondent’s (AC) payroll which of itself she said should not be read as anything other than as a matter of convenience.
There had been issues between the Appellant and the employer and in fact the Appellant proffered his resignation in February 2014 and this was subsequently reversed by the first Respondent and these letters were opened to the Tribunal.
There arose in April of 2014 an issue pertaining to the issue of who exactly was the Appellant’s employer. The explanation given to the Tribunal was that the decision was made to discontinue the second named Respondent’s (AC) infrastructure south of the border and move instead to set up its own separate Republic of Ireland apparatus.
The Appellant vehemently objected to the purported “transfer” as he saw it. He was not able to point to any disadvantage to himself. Nor did it meaningfully affect his day-to-day employment.
The Appellant was not able to point to any salary or scale or roster change that in any way meaningfully changed as a result of the employer name on his payslips being changed for administrative reasons. On balance the Tribunal accepts the first Respondent’s assertion that it is the employer.
In August 2014 the Appellant resigned his position claiming that he was constructively dismissed (In circumstances where it is noted no Grievance Procedure had been triggered).
The burden rests on the Claimant to establish that he had no alternative other than to resign his position and the Appellant has failed to meet the burden as there were no material changes to the terms of his employment and it is clear that the Appellant was leaving to take up alternative employment.
The appeals against the second named Respondent (AC), UD936/2015, PW269/2015, TE85/2015, WT199/2015, are dismissed.
The appeal under the Unfair Dismissals Acts, 1977 to 2007, against the first named Respondent, UD 937/2015, fails and the Tribunal upholds the Rights Commissioners Recommendation. Regarding the appeal under the Payment of Wages Act 1991 the Tribunal upholds the Rights Commissioner Recommendation in that the deduction for €225.00, was a valid deduction, and as regards the sum of €99.00, the employee should not be liable for that amount. Regarding the appeal under the Terms of Employment 1994 the Tribunal upholds Rights Commissioner Recommendation in awarding the Appellant €1,500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)