21 Sep Redundant Employee Deemed To have Continous Service After Being Re-Employed Within Days
In a recent unfair dismissal case UD 877/2013, the preliminary issue of whether the claimant had the required one year’s continuous service to make a claim was considered in light of a suggested break in service after being made redundant and then re-employed.
The employee commenced employment in February 2007 and was made redundant around 21st March 2012 receiving a redundancy payment of €5,178. The employee was then re-employed before her employment was terminated again in February 2013 and it is the timing and period of re-employment that was disputed between the parties and relevant to whether the employee had the required service to claim unfair dismissal in respect of the second termination of employment.
The employee claimed that she was asked to return to work within days of being made redundant because of problems the business was experiencing with work load after she left and that she was told she could not be put back on the payroll for 13 weeks due to being made redundant but would receive payments in the form of cash and back pay once she was returned to the payroll. She outlined that she worked three days per week and received an oil fill worth €300, new tyres to the value of €500 and holiday pay to the value of €1300 in lieu of cash.
The employer disputed the employee’s account of what happened and said the employee had only completed a few days work after being made redundant to help with reconciliations which she was paid for in May before being re-employed on 25th June 2012. The employer further outlined that the employee then did some extra days due to audit requirements in addition to her normal two days per week and received back pay in July and August for the extra work. The employer confirmed that he had paid for oil and tyres for the employee.
The tribunal decided that the employee’s evidence was more acceptable on the balance of probability and reviewed payslips for July and August that were clearly based on working a three day week. The Tribunal also considered that the employer was unable to produce the statutory records that he was required to in respect of the actual hours worked and that the employer’s confirmation that he had paid for oil and new tyres was indicative of some arrangement between them.
The EAT concluded that although the employee was dismissed by way of redundancy on 21st March 2012, she was re-employed on 26th March 2012 and her re-employment came within the definition of immediate re-employment as per the Minimum Notice and Terms of Employment Act 1973, thus rendering the employee to be continuously employed and entitled to bring a claim for unfair dismissal.