ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000988

Complaints for Resolution:

Date of Adjudication Hearing: 29/02/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Act, 1967 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant commenced work as a Tele Sales Assistant at the respondent company on 16 April, 2013. He worked a 40/45 hr week, receiving 10 euro an hour.

On 25, September, 2015, the complainant was invited to attend a meeting hosted by the service manager JO’S at 15:00hrs. At this meeting he learned that the project he had been working on was being terminated from 30 September, 2015. There were some positions available on another project but there would not be enough jobs to go around .Anyone with an interest in the second project were invited to express an interest. The Complainant declared that he was not interested in the second project as he had worked on it before. Redundancy was offered to those employees who did not want to change projects. He understood that as he had in excess of two years service he would be entitled to redundancy and notice. He was also thanked for his service to the company.

The complainant made plans to seek alternative employment on foot of this information. He secured new employment in a similar field and commenced on October 5, 2015.The other employees nominated a colleague to follow up on their redundancy and notice entitlements. The complainant was denied redundancy.

The complainant submitted a series of emails at the hearing from the Financial Controller to DN, the appointed spokesperson for the staff on pursuit of redundancy. These emails confirmed that redundancy and notice would be paid on Friday, October 2, 2015.

The complainant contended that his employment was terminated by way of redundancy as his employer had decided to carry on the business with fewer employees “ as implied at the meeting of 25 September, 2015”,whether by requiring the work for which the employee had been employed ( or had been doing before his dismissal) to be done by other employees .

The complainant attached a collateral letter from his present employer confirming that on 28^th September, 2015 he had interviewed and mentioned his impending redundancy to his prospective employer. The complainant recalled that he had been informed that his redundancy calculation would be €2,800 on 25^th September, 2015.

Respondent’s Submission and Presentation:

The respondent company operated a Call Centre, which manages short term and long term contracts .On 25^th September, 2015, the respondent called a meeting to inform staff that one of the current contracts was “ceasing to operate”. Offers were made to staff to join an alternative contract, which required the same skill-set. The respondent contended that the complainant had the relevant experience for the new contract. The company introduced a voluntary redundancy scheme for the remainder of staff.

The complainant was off on 26^th - 27^th September , and worked on September 30^th ,2015, when he received a shared email with three other staff informing him of training on the alternative project on Monday, 5^th October,2015.

“ P training has been scheduled for Monday, 5^th October 2015 @11 am .You will be paid for Thursday 1^st October and Friday 2 nd, October “

The Complainant did not attend the training .On 9 October, the HR Manager emailed the complainant confirming that he had been offered work on the” P” project and had been expected at the training day on October 5.

The complainant confirmed that he was working elsewhere and sought his statutory redundancy and p 45. He stated that he would be making a complaint regarding the refusal to follow through on redundancy in his case.

The respondent confirmed that the company made 8 staff redundant on statutory terms, at this time, leaving 4 staff assigned to the alternative “P” project. There was a 10 person shortfall of staff on the “P “ project but these positions were in active recruitment mode on the day of the hearing .

The respondent disputed that a redundancy had occurred in the complainant’s case, as he had been offered a suitable alternative role, which he did not appeal or seek clarification on. In addition, the respondent confirmed at the hearing, that the complainant had sought an advance in salary of 650 euro, at this time, which was paid to him and recouped from his Salary. The respondent submitted that this served as a confirmation that the complainant had knowledge that his employment was set to continue at the company.

Findings of the Adjudication Officer:

At the hearing, both parties accepted that the meeting of 25^th September 2015 took place. There were divergent views on the action points arising from the meeting. On the complainants side, he saw it as a confirmation of redundancy and actioned a plan to secure a new job straightaway. He left the administrative details of the redundancy and payment in lieu of notice to his colleague, DN and he understood that his redundancy figure would amount to 2,800 euro. He understood that he had made it clear by not applying for a place on the “ P “ project that he would secure redundancy .He was very disappointed to be denied redundancy . The Complainant started his new position on October 5^th, 5 working days post the initial meeting.

On the respondent side, they emphasised that the cessation of the initial project was not of their making and was instead a product of the marketplace, i.e. the customer ceased the project. They admitted that there was a period of uncertainty following this news, where they first estimated that redundancies would follow for all staff on the project, i.e. 12 staff. They realigned that plan into making 8 voluntary redundancies and 4 transfers to the “P “project. They recognised the skills of the complainant in “Outbound Sales” which was required on the new project and deemed that the complainant had accepted the transfer when he didn’t appeal or challenge the decision. His request for his P45 on October 9^th, in addition to his non attendance at the training, alerted the respondent that he had left the company. The Respondent disputed a redundancy situation had occurred in the complainants case as they had offered suitable work to him and they wished to retain his skills.

I find that the management of the announcement of the cessation of the initial project fell far short of a reasonable approach by the respondent. While it could be argued that the respondent complied with the two week notice of redundancy requirement, there was a complete absence of individual consultation or robust information. I find that there was an over reliance on email communication and insufficient 1; 1 engagement. This claim is lodged under the Redundancy Payments Acts and I am bound to make my decision under the parameters of that Act. However, it is clear that this was a collective redundancy situation.

I find that the backdrop to the announcement of the cessation of the initial project on September 25^th caused a raised level of confusion for the complainant. He received a series of mixed messages from the company, which on one hand spurred him into accelerating re-employment and on the other hand raised an expectation that a redundancy payment would be forthcoming.

There was a distinct lack of transparency surrounding the management of the voluntary redundancies and the selection criteria. There was no paper work of any objective analysis of any kind submitted for consideration on the distinction between the 8 redundant staff and the 4 that were presumed to have elected to remain. I find that the complainant did not elect to remain in the company by his communication to his manager, JO’S on September 25^th, his subsequent re-employment on October 5^th and his formal claim for redundancy on October 9^th. I must now examine whether his claim can succeed?

Redundancy has two characteristics which are important: impersonality and change. They run through the five definitions in Section 7 of the Act. St Ledger v Frontline Distribution ltd [1995] ELR 610

Section 7(2) of the Redundancy Payments Act 1967 defines a “ redundancy situation” as “ occurring when there is a dismissal of an employee by an employer , not related to the employee concerned and the dismissal results “ wholly or mainly “ from :

(a)Employer ceases to carry on the business for which the employee was employed.

(b) Requirements for employees have ceased or diminished

(c) Business is going to carry on with fewer or no employees

(d) Work will be carried out in a different manner, for which the employee is not sufficiently trained

(e) The work previously done by an employee will be carried out by someone capable of doing other work for which the employee is not sufficiently qualified.

Section 17 of the Act provides that:

The Employer who proposes to make an employee redundant must notify then in writing of the dismissal “not later than two weeks before the date of the dismissal”. Therefore, there must be a dismissal for the Redundancy Acts to apply.

In this case, the complainant had no desire to join the “P “project as an alternative to redundancy. In Collins v Excel Property Services Ltd, EAT, Dec 1998, A School cleaner had resigned her position when the respondent lost the cleaning contract and she believed that the replacement service was not at the same standard. A claim for redundancy was dismissed by EAT which held that there was no redundancy situation as the job was still there via the Acquired Rights Directive

There is a distinct lack of clarity in this case on how the positions on project P were assigned. It was acknowledged by all present at the hearing that the complainant was highly skilled and required for the “P “project but I accept that he had not given his consent for the transition. In addition, the complainant did not receive an RP50 or any other written notification of his date of dismissal. I cannot accept that the emails from the Financial Controller to DN had a global application as they were sent on an individual basis. These clarifications should have been issued to each employee as indicated on September 25 on a person to person basis as preparation for the orderly wind up of the Team assigned to the initial project .

The complainant’s contract of employment provided that:

“You will be employed as a Tele Sales Agent. You will be required to be flexible in this position and must be prepared to undertake other duties as may be assigned to you by the Company from time to time. Such duties as required are dependant upon the continuation and nature of the campaigns available to the company. You may be required to work inbound and/or outbound call work during your employment “

I find that this term of the contract was consistent with the position adopted by the respondent at the hearing on the cessation of one contract and the advancement of an alternative contract. I have not seen any notification of the respondent’s intention to dismiss the complainant through redundancy

. I appreciate that there was a “loose “offer to all on September 25^th which did not convert to a formal offer of redundancy as outlined in section 17 of the Acts. I find that the complainant unfortunately acted to his own detriment by accelerating reemployment without securing certainty on the position pertaining to his presiding contract of 2013 with the respondent company. He understood that he was on notice of redundancy but neither a RP 50 nor RP 6 was available for my consideration.

I find that this is an unfortunate sequence of events, completely unaided by the erratic management of the cessation of the initial project and the gap in time before the commencement of the “p” project. I suggest that the respondent give consideration to adopting and publishing a universally understood communication protocol for the benefit of all staff and management governing an anticipatory reoccurrence of these events in the future.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I also need to make a decision under the Redundancy Payments Acts and Minimum Notice Legislation.

In the meantime, having carefully considered the evidence adduced at the hearing .I am of the view that a redundancy situation did not exist. The complainant was offered continuing employment in his substantive post, albeit on a different project, within his skills set as provided for in his contract . I appreciate that he was given a false expectation by the company of an imminent redundancy but this did not materialise into a genuine redundancy notification situation and I must apply the facts to the law in this case .

In those circumstances, I must find against the complainant and the claim under Redundancy Protection Acts 1967 to 2007 and Minimum Notice Legislation fails.

Patsy Doyle, Adjudicator.

Dated:   22^nd June 2016