McElwaine v Smith

JurisdictionIreland
CourtEmployment Appeal Tribunal (Ireland)
Judgment Date12 May 2008
Judgment citation (vLex)[2008] 5 JIEC 1201

Employment Appeals Tribunal

EAT: McElwaine (claimant) v Smith (respondent)

Representation:

Claimant(s):

Mr. Aaron Shearer BL instructed by Doyle Associates, Solicitors, Orchard House, Main Street, Rathfarnham, Dublin 14

Respondent(s):

Mr. Brendan Murphy, Director of Operations, Submarine Bar, Crumlin Cross, Dublin 12

Abstract:

Employment law - Unfair dismissal - Redundancy - Unfair selection for redundancy - Whether manner of dismissal unfair - Whether reasons for redundancy explained - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

MN157/2008

UD160/2008

WT80/2008

RP 392/2008

CLAIM(S) OF:

Raymond McElwaine, 46 Silverwood Road, Rathfarnham, Dublin 16

Against

Gary Smith T/A The Submarine Bar, Crumlin Cross, Dublin 12

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

ORGANISATION OF WORKING TIME ACT, 1997

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Ms P. McGrath BL

Members:

Mr M. Noone

Mr. P. Woods

heard this claim at Dublin on 12th May 2008

Facts The claimant was employed as a senior chef with Manna Foods. In October 2007 he had a hernia operation and was absent for 10 weeks. A transfer of undertaking occurred in November 2007. In January 2008, the claimant was told that due to cutbacks he had to leave.

Held by the Tribunal in awarding the claimant Eur10,000 under the Unfair Dismissals Acts that a transfer of undertaking occurred and the claimant was not excluded from the transfer. There was an obligation on the employer to demonstrate why a person was being singled out for dismissal. The manner of the claimant's dismissal was unfair.

The determination of the Tribunal was as follows:-
1

The employer consented to a claim under the Redundancy Acts, being included during the hearing.

Respondent's Case
2

BM for the respondent told the Tribunal that he was director of operations for the respondent. It had a catering licence up to 3 November 2007. GS took over the respondent on 24 November 2007 on a transfer of undertaking and he took over everything except food. A licensee MF trading as Manna Foods provided food in the respondent and he paid the respondent a percentage of the food sold. In November 2007 the respondent took back the food and all employees were transferred over under a transfer of undertaking with the exception of the...

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