Newman v Cabra Window Systems Ltd & McNab

JurisdictionIreland
CourtEmployment Appeal Tribunal (Ireland)
Judgment Date19 Sep 2006
Judgment citation (vLex)[2006] 9 JIEC 1902

Employment Appeals Tribunal

EAT: Newman (claimant) v Cabra Window Systems Ltd & McNab (respondent)

Abstract:

Employment law - Unfair Dismissal - Notice - Statutory Redundancy - Whether claimant was an employee - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1227/2005

RP560/2005

MN921 /2005

CLAIMS OF:

Alan Newman, 31 Convent Way, Navan Road, Dublin 7

against

Cabra Window Systems Limited, 86 Kinvara Park, Navan Road, Dublin 7

Harry Mc Nab, 257 Navan Road, Dublin 7

under

UNFAIR DISMISSALS ACTS, 1977 TO 2001

REDUNDANCY PAYMENTS ACTS, 1967 TO 2003

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Mr. P. O'Leary B L

Members:

Mr M. Kennedy

Mr S. Nolan

heard this claim at Dublin on 19th April 2006

and 14th September 2006

Facts: The claimant alleged that he was a shareholder and director of the respondent company that had ceased to trade and that he was due outstanding redundancy payments from the respondent. Alternatively, if no valid redundancy situation existed, the claimant alleged that he had been unfairly dismissed in so far as the respondent continued to trade after its purported cessation. The second named respondent contended that the claim was against the first named respondent and that he had already been compensated in excess of his share and had refused to participate in discussions to wind up the company

Held by the EAT, that the Claimant was an employee and not a proper director of the company. No evidence was adduced that he had paid for the share that he allegedly held in the company. He had no involvement in the preparation of accounts and had received a redundancy payment. The Tribunal would award the claimant Eur9,227.40 as a statutory redundancy lump sum. The claimant would be awarded Eur2,962.40 pursuant to the Minimum Notice and Terms of Employment Acts 1973 to 2001.

1

The determination of the Tribunal was as follows:

Background:
2

The respondent manufactures windows that have been order by its customers. The claimant made these windows when he worked for the company.

3

The claimant contends that he is due outstanding redundancy payments from the respondent company. Alternatively if it is found that no valid redundancy situation existed he contends that he was unfairly dismissed in circumstances where the respondent company purportedly ceased to trade, but did not cease to trade, rather it continued to trade in the same business, in the same manner and from the same premises as before the purported cessation.

4

The first named respondent (hereafter known as Rl) was not represented. Rl changed its title some ten years previously, in that is was previously known under another name.

5

The second named respondent (hereafter known as respondent) contends that the claim is against the first named respondent. That the claimant was a director of t he Rl. That the claimant has already been compensated in excess of his share of Rl. That the claimant refused to participate in discussions to windup Rl. That the conduct of the claimant justified his dismissal.

Claimant case:
6

The Tribunal heard evidence from the claimant. He began working for the respondent when he was eighteen years of age after finishing school in 1986. He had left school and was placed on a FAS course with the respondent company as an apprentice fabricator. His work entailed making patio windows and doors. After ten years working with the company he approached the owner (Mr. McN) to seek a pay rise or that he would have to seek work elsewhere. Mr. M told him that he would make him a director of the company with one third of the profits accruing to him. That is Mr. M would change...

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