O'Connor v Marina Joinery Ltd [EAT]

• Jurisdiction: Ireland
• Judgment Date: 18 May 2012
• Judgment citation (vLex): [2012] 5 JIEC 1808
• Date: 18 May 2012
• Docket Number: RP1341/2011
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. RP1341/2011

APPEAL OF:

Harry O'Connor, 107 Silverheights Avenue, Mayfield, Cork

and

Marina Joinery Limited, 2 Victoria Road, Cork

Representation:

Appellant: Mr Dick Hurley, UCATT, 56 Parnell Square West, Dublin 1

Respondent: P.J. O' Driscoll & Sons, Solicitors, 41 South Main Street, Bandon, Co. Cork.

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal (Division of Tribunal)

Chairman: Mr. L. �" Catháin

Members: Mr. P. Casey

Mr. J. Flavin

heard this appeal at Cork on 18th May 2012

Appellant's case

1 The appellant brought the appeal to the Tribunal because he was paid a redundancy lump sum based on a reduced working week, which he had been working prior to the redundancy. However, it was the contention of the appellant that the calculation for redundancy ought to have been based on his normal wage prior to going on short time working or reduced hours.

2 The appellant commenced employment with the respondent on 20 ^th September 2000 and was made redundant on 29 ^th March 2011. He had been on a short-time working week since 15 ^th February 2010 and was placed on temporary lay-off from 24 ^th February 2011. The appellant lodged a form RP9 with the respondent on 25 ^th March 2011 requesting payment of a redundancy lump sum. The respondent then paid the appellant a redundancy lump sum based on an average of the hours worked from 9 ^th April 2010 to 1 ^st April 2011. However the appellant gave evidence that he had been paid at least one full week's wages during August 2010 and therefore the short-time working had ceased and recommenced less than 12 months before hewas made redundant. The appellant also stated that he was always available to return to fulltime employment and expected to be put back on a full week at all times. He did not accept thathis normal working week was the reduced hours and saw those hours as being temporary.

Respondent's case

3 The respondent's case was that the appellant was on reduced hours of working for two separate periods, the latest being from 15 ^th February 2010. Therefore, as he was on reduced hours for more than 12 months prior to redundancy, the lump sum was correctly calculated based on an average of his hours over a 52 week period.

4 A witness for the respondent stated that the claimant may have received a full week's wages on certain weeks during those 52 weeks but that was because the pay week did not run from Monday to...