Hurley v McGivern (& Others)

• Jurisdiction: Ireland
• Judgment Date: 12 August 1998
• Judgment citation (vLex): [1998] 8 JIEC 1201
• Date: 12 August 1998
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

Hurley v McGivern (& Others)

Abstract:

Dismissal - Sales director - Declining sales - Whether claimant dismissed or made redundant.

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD322/98 MN884/98

CLAIM(S) OF:

Shane Hurley, 1 Beechdale Close, Blessington, Co Wicklow

against

Hugh McGivern, Fionn MacCumhaill and. Seamus Cummins, 8 Dawson St., Dublin 2

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 1991

UNFAIR DISMISSALS ACTS, 1977 TO 1993

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr T. Ryan

Members: Mr M. Dunne Mr M. Hayes

heard this claim at Dublin on 21st July 1998

Claimant was sales director of respondent partnership. He received no terms and conditions of employment and believed he owned 25% of the business through his contribution. Losses occurred to the business resulting in two staff being let go and two more resigning. The witness for the respondent was their financial controller who was not a director and had no involvement in the hiring or dismissing of the claimant. The claimant's evidence went uncontested as no members of the partnership attended the hearing. Claimant received two verbal and one written warning from Fionn MacCumhaill regarding the unsatisfactory sales performance. Respondent claimed that claimant was made redundant.

The Tribunal determined that it accepted the uncontested evidence of the claimant and awarded him £12,000 for unfair dismissal.

The determination of the Tribunal was as follows:-

1 The claimant was employed as a sales director by the respondents from November, 1996 to 27th November, 1997. Dismissal is not in dispute between the parties.

Respondents Case:

2 Evidence was given by.Mr Kevin Fingleton, financial controller, who told the Tribunal that a partnership was set up between Hugh McGivern, Fionn MacCumhaill and Seamus Cummins around November, 1996. Mr Fingleton was not a director of the business and had no involvement in hiring or dismissing the claimant. The three partners were not present at the Tribunal to give evidence.

3 The claimant was employed by Mr MacCumhaill and was involved in the sales area.

4 The Tribunal heard from Mr Fingleton that regular meetings were held and that in 1997 the business suffered losses in the region of over £100,000 and that two employees left of their own accord and two were let go due to the level of losses. In around October, 1997 Mr MacCumhaill outlined...