ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001675

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00002312-001	01/02/2016

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

In addition to my recent Workplace Relations Complaint Form ,I would like to add information and documentation to support my case . December 10th 2008 Started to work for the Restaurant as Assistant Floor Manager .Recieved contract of employment and commenced work . March 28th 2014 Started my maternity leave . August 27th 2014 Received an informal letter from Company director in regards to my due date back to work, which was approximately 4 weeks from the above date. Closer to my return date ,we arrange to meet for chat.I confirmed that i was ready to return to work .During our meeting I asked was it possible to finish early 2 evenings per week. (8 or 9 pm instead of 11pm) due to my husband working arrangements .I offered to provide my husband's shift rota for a full year in advance so i could be facilitated .The director refused to facilitate me so to me the matter was closed as i was ready to try organize a babysitter for those two nights .I understood i needed to be flexible and didn't question the topic again . September 26th 2014 My maternity leave finished and i was ready to return to work. For 2 weeks after that date the director did not contact me . October 12th 2014. While feeding my daughter i sustained an injury to my back October 13th 2014 I went to my Doctor and received a sick cert .I was advised not to lift anything and return to her 4 weeks later . On the same day i met with the director and gave him my cert . During my sick leave the director contacted me with a “new proposition” in his other entity, a café, a new position with the title “Customer Service Operative” He told me to ring him back that the offer wouldn't be on the table for ever. Later that week before my return to i work i met with the director for a coffee to discuss in full his offer New hrs, different to the restaurant, 8.30-5.00 or 10-6.00 I would receive a new contract for the above position I would also receive a P45 form from the restaurant if i was to accept his offer . Under no circumstances at any time was i told that i wouldn't be working for the director and that his Employer No. would change .As far as i was concerned it was just a transfer to his other business as I would have done work for him in the past in hospital and other catering functions outside my normal working hours. I received a contract from the director with my new Details. My new contract was headed with “B… RESTAURANT LIMITED My contract also stated that my “normal place of work “ Z.. CAFE but i may be required to work in other locations . November 13th 2014 I received my Doctors cert to return to work. The director issued me with a P45 and backdated it to November 01 2014 even though my sick cert finished on November 12th 2014 2015 spent my time working in the café. June 2015 I Became pregnant January 06 2016 the director came to staff and told us that there was a possibility that we may close down the business but no date . January 13th 2016 the director rang myself and asked if there was anything more he needed to know before he issued me my p45 (for example my Maternity Leave ) On same day i went to work as normal and there was an envelope waiting for me with cash and p45. I told him i didn't want to work without payslip (ie for cash) My last official payslip was issued to me December 21st 2015 I was issued with my P45 with date December 31st 2015 I didn't receive any notice in writing about the closing of his coffee shop I finished of my own accord after he handed me my p45 The CAFE is still open for business paying cash to his employees. All other employees received their p45 same date as myself with the December 31st 2015 date The CAFE is planning to stay open till easter. January 15th 2016 After visiting my local Citizen Advice information centre and speaking with one of their advisors .I handed the Director a RP77 form (Redundancy Payments Acts 1967- 2007) signed .The director had already told me in a previous conversation that i wouldn't be entitled to a redundancy as they were two different companies. January 18th 2016 the director gave me letter stating that : I was not entitled to any redundancy That my contract was not being renewed Also stating that i was emailed another copy of contract for easy reference January 14th 2016. ( i was not emailed) That i had not worked long enough in the cafe to qualify for redundancy That i resigned from my position in B.. RESTAURANT LIMITED because i could not meet roster requirements ( I never resigned) That i took up work with a new employer,which has no formal legal relationship with B.. RESTAURANT LIMITED Z.. CAFE would have different employer number . January 19th 2016 I was issued a p60 All the above additional information to support my complaint can be backed up with copies of documents once i receive my reference number .

Respondent’s Submission and Presentation:

The complainant was on maternity leave in 2014 and towards the end of that leave the respondent met with her to discuss her return to work. At that meeting the complainant requested a change in her working hours but was informed that this could not be facilitated.

The complainant subsequently advised the respondent that she was medically unfit for work for four weeks. The respondent met with the complainant in the meantime and advised her that he had a position for her in another one of his enterprises, a café in a leisure centre. This enterprise was entirely separate from the restaurant in which the complainant formerly worked. It was not part of the restaurant business and was operated by the respondent on a sole trader basis. The position was offered on the grounds that the complainant could not continue working the hours available in the restaurant thereby ending that employment. The complainant was issued with a P45 form in that regard.

Because of uncertainty in relation to the lease for this new operation, all staff including the respondent were issued with fixed-term contracts of 12 month’s duration. In addition, there was a new employer number and the cheques by which wages were paid were drawn on a different bank with the owner’s name on the cheque.

In September 2015 the respondent advised staff in the café that he was uncertain as to how long the operation could continue. The business effectively ceased on 31^st December 2015 as the centre owners had alternative plans for the space occupied by the café.

When the respondent received the RP77 form from the complainant he clarified to her that she had ceased to be employed by the restaurant in November 2014 and that she did not have the required service in the café to qualify for redundancy.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Whether the complainant qualifies for a redundancy payment as per the provisions of the Redundancy Payments Act 1967.

Legislation involved and requirements of legislation:

Section 7 (1) of the Redundancy Payments Act states:

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided -

(a) He has been employed for the requisite period

Section 7(5) states:

“In this section requisite period means a period of 104 weeks continuous service (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Decision:

For the sake of clarity it was accepted that the only complaint before me was in relation to the Redundancy Payments Act 1967.

The complainant had been employed since December 2008 as an Asst. Manager in a restaurant. In November 2014 she moved to a café as a customer service operative earning €11.00 per hour. The circumstances relating to this change of employment are in dispute. The complainant’s position is that all her dealings with regard to her work in both locations were with the one person and that in moving from the restaurant to the café she did not break her service but abided by the terms of the only contract that she had signed which required her to work in other locations. The respondent stated that his position was that the complainant had terminated her employment in the restaurant as her working hours did not suit her new circumstances following her maternity leave and that he had offered her new employment in a café that was a completely separate entity to the restaurant.

There is disagreement as to what occurred at the meeting between the parties prior to the complainant’s return to work in November 2014. I am satisfied that the complainant had not decided to resign from her position in the restaurant as a result the claimant refusing to change her work roster. This is confirmed by a letter from the respondent to the complainant, dated 22^nd October 2014, in which he wrote: “We expected you to return to work from your maternity leaveat the end of September. Unfortunately this did not happen due to your unavailability to work into a typical rota here in work. However you subsequently decided that this was going to be possible, but unfortunately you injured your back and are on sick leave until mid November 2014.”

It is accepted by the complainant in her original submission that she was told by the respondent that she would be given a new contract and that a P45 form would issue in relation to the restaurant. The complainant pointed out that the new contract was headed B… Restaurant Ltd. as was her old contract. The respondent stated that this was a typo resulting from him using a template to produce contracts. He further pointed out that listed underneath the headings were the parties to the contract. In the old contract the employer was entitled B… Restaurant Ltd. but in the new contract the employer’s name was the respondent’s own name because he operated the café as a sole trader. He also adverted to the fact that the new contract clearly stated that it was a Fixed Term Contract. The respondent produced a letter from an accountancy firm stating that B… Restaurant Ltd. is a limited company operating as a restaurant and is a completely separate legal entity to the café which traded under licence in a leisure centre in the personal name of the respondent as a sole trader operation. He also produced bank documentation regarding separate accounts and chequebooks.

Section 16 of the Act deals with associated companies. In particular Section 16(4) contains a definition of associated companies as follows:

“For the purpose of this section two companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and “associated company” shall be construed accordingly.”

The evidence before me indicates that the two entities involved are not associated companies.

The complainant had a right under the Maternity Protection Act 1994 to return to work in the same job with the same employer. In the event and with reluctance there was a de facto acceptance by her of the alternative employment albeit without full awareness of the consequences of same. I do not believe that the respondent was fully transparent in his dealings with the complainant in this regard and from her evidence she felt that she was pressurised into agreement. It is accepted, however, that the complainant was informed that a P45 form would be issued with regard to her employment in the restaurant and that a new contract would issue for the café and that both these events did occur. The complainant then worked that contract for a period of more than 13 months. As noted above the dispute relates to events in November 2014 and those issues are outside my remit.

Returning to Section 7(5) of the Act I find that the employer who dismissed the complainant was the respondent in his capacity as a sole trader running the café and that the complainant did not have the requisite period of service with that employer to qualify for a redundancy payment. Consequently the complaint fails.

Dated: 8^th August 2016