McElwaine v Smith
Jurisdiction | Ireland |
Judgment Date | 12 May 2008 |
Judgment citation (vLex) | [2008] 5 JIEC 1201 |
Date | 12 May 2008 |
Court | Employment Appeal Tribunal (Ireland) |
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 |
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 employer consented to a claim under the Redundancy Acts, being included during the hearing.
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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