Whats going to happen.

solway

Hi all.
I am an employer in construction industry and in Nov '09 an employee of mine left my firm. We were working on a housing scheme and just as we started the last house on the scheme this employee says to me "have i any more work in the pipeline". I said not at the moment but the contractor we were working for was always good to come up with more work for us. I said this to him and his reply was that a mate of his was working for another firm and that they were looking for workers for a couple of months. I said in conversation that it would be hard to turn that down because i have nothing at the moment for down the line. A week passed and he asked me again about any more work coming up. I heard on the "grape vine" that the contractor had a couple of weeks for me on a different job so that is what i told him. He said he would probably leave me and go with the other firm for the couple of months work. So when the last house was finished i issued him with his P45 and off he went. When i asked him did he get that job with the other firm he said that he was "expecting a phone call" "your man said he,d ring me in a day or two". So off he went no problems at all. That was until Feb2011 just gone when i got a phone call from him asking was he entitled to redundancy. I said as far as i was know he wasn,t because he asked to leave my firm. I didnt make him redundant but i said look into it if you want but i dont have the money to pay you if you are. Last week i got a letter from NERA saying that this person was claiming off me for redundancy and failure to get proper notice. I was gobsmacked. On the letter is his explaination for claiming he says "that he was not offered any redundancy package and didnt get proper notice". He also said that my reason for not paying him was that i told him i couldnt afford it. I got on to my solicitor and he said that he was out of time to make a claim. Its now in the hands of my solicitor and im waiting for a meeting with him. My question is if an employee asks to leave your firm do i still have to pay redundancy. I have heard that this person wants to go to Australia and hasnt the funds to go so is trying to get me to pay for it. Its funny how a year and 3 months passed without a word from him and now i get this letter. If i loose in the tribunal hearing i will have to pay him but i cant afford it. I simply do not have the funds to pay out approx 7k. I have 1500-2000 in my acc and thats all. I know my solicitor will have all the answers for me but as i said im waiting for a meeting. Im putting it out there to see if anyone ever saw this before. I cant get it out of my head.

J85

im no expert but you dont owe him anything he left his problem. You dont have to guarantee him any work into the future all you need to do is give him notice if you decide to let him go (which you never said you would). Lots of people leave not realising they are leaving there redundancy behind.

As for not being able to pay im fairly sure that if you have to pay the government will pay if you dont have the money (Usually you pay all and claim back 60% of the money when you pay your tax). They will then look to try and claim back the balance you owe them which is 40% i think.

I would hit back fairly hard with a letter from solicitor if you can. You being able or not able to pay is not an excuse for you but he left himself so he gave up his right to redundancy so doesnt matter. I think him leaving it over a year will make it very hard to justify why he hasnt tried to claim it earlier.

Hope that helps

solway

The reason why he didnt apply sooner is because he thought he would be "reinstated with his previous employer" which is me. I know he is going to say that i let him go but the fact that he never looked for any redundancy on the day he left should kind of stand for something but who knows. Its my word against his and ive been told that NERA usually side with the employee.

mrsbyrne

NERA will not be hearing this case, it will be the Employment Appeals Tribunal. In my experience, it is pointless you worrying about this. You are sure he was not entitled to any redundancy, that it was not a redundancy situation. He thinks otherwise. If all goes to all and he does pursue this to the tribunal (and this will not happen for at least 9 months), then the tribunal will listen to your story, and listen to his and then they will make their decision. If they decide it is a redundancy, you will have 6 weeks to appeal the decision. If your appeal fails, then you will say that you dont have that money, that you can prove this by provide a full set of accounts. If as you say you dont have the funds, then that will be the end of your involvement in this matter. If the Tribunal find that he was not entitled to redundancy, then he also, has 6 weeks to appeal. i remind you again this is all months and months down the line, please dont worry too much about it.

J85

If he was going to be reinstated then I would have thought he wouldnt go working for someone in between and who would wait a year to be reinstated thats more if you didnt have work for a few weeks. If he has worked for someone else since you and left it this long I think you are safe. If he has been on dole since or out of work then it will prob come down to who they believe on the day and under the circumstances that should be you.

You couldnt gurantee him work so he moved to someone else who he thought could give him more job security and now over a year later he has decided he would like to screw you for redundancy.

I wouldnt be dwelling on the no money part tho cas that makes it sound like u just dont want to pay. All you said to him when he rang was you would have to look into it and didnt think he was intitled to it cas he left which is right and if he was intitled which you thought he wasnt you would have too see what happens cas you dont have the money and would find out and get back to him.(which is different to saying i dont have the money so im not paying you)

im sure your solictor will be able to tell you anyway.

solway

Thanks everyone. Solicitor just rang and said my case wont be heard for 70-80 weeks.
With regards the person claiming off me i dont think he was employed by anyone legally since he left me but i do know he was working away quietly 'under the radar'.The person he went working for when he left me never registered him with the revenue and was paying him cash for the couple of months he was working for him so ive been told from a reliable source from my investigations last night. Thats here nor there cause i cant produce anything to prove this. It just p*ss*s me off that he makes out he is the victim here. This individual was with me just over 5 years and we always got on fine. It just goes to show you cant trust most people.

Rhys Essien

Can you counter sue this lad?.I certainly would like to fix this fella for pulling this stunt if I were you.

mrsbyrne

Sue him for what? Thank God we live in a country where everybody is allowed to make a complaint about a perceived injustice if they want to. Its possible that this employee genuinely feels he was entitled to a redundancy. The Op, and myself incidentally, feel that he he wasn't (based on the OP account of proceedings, dont forget that there are two sides to every story, im sure the OP would agree).But the EAT is there, thankfully to adjudicate in these matters. My own feeling is that the employee will lose interest in pursuing his claim because of the waiting time involved. The employer will be very wary for ever more of employees terminating their own employment, so its all good.

solway

Someone is probably whispering in his ear telling him this and that.If the EAT rules in favour of him then so be it.The government will have to step in and pay 60% and i repay the 40% over a period of time. If i was to appeal their decision i would probably end up paying more to a solicitor than to him in the long run. Its just a headache. Hopefully the headache will have eased a bit by tomorrow afternoon after i meet my solicitor.

the_syco

solway wrote: »

i repay the 40% over a period of time.

Also ask your solicitor what's the maximum amount of time... screw the ex-employee over legally by taking your time :P

mrsbyrne

the_syco wrote: »

Also ask your solicitor what's the maximum amount of time... screw the ex-employee over legally by taking your time :P

Either party can ask for a postponement of the hearing. its only supposed to be allowed in "exceptional " circumstances, but in my experience is hardly ever refused.This can set the hearing back by up to 12 weeks.

solway

Met solicitor yesterday morn. Solicitor wasnt too clear whether my company had to be in insolvency for the government to step in and pay the lump sum if i cant afford to pay. He is doing a detailed look into this for me. Is this true or will the government step in anyway if im still trading but cannot afford to pay the lump sum which looks like 6300 euro. He is writing to the claimants solicitor telling them that we are not liable for this claim as the claimant left his job for other employment. We will wait to hear back from the other solicitor. My solicitor reckons this could drag on for nearly 2 years and that employment law is very expensive. This will turn me off directly employing anyone in future. Never again would i employ someone. Any work i get in future im going to sub contract it out.
He also went on about that if i cant afford to pay the claimant in the event that we loose, the claimant can seek to have my company put into liquidation in order to get his payment but to get this done would be expensive also. Is he jumping the gun a little here.....?

gerrycollins

This is why when any of my employees are leaving I ask them for a short resignation letter "just for the file" and to cover my arse.

Also while you have nothing on paper proving he left of his own accord, neither does he have that you made him redundant. Did you make the rest of the workforce redundant? if so he might feel he is owed. If you didnt make them redundant then you have a point.

solway

The last time i made someone redundant was December 2008. No one else left me at the time that he did.
Thats a good idea to do when an employee leaves for their own reasons. Its a good way of covering your arse as you said.