ADJUDICATION OFFICER DECISION

A Mushroom Farm Worker –V- An Employer Represented by Morgan McManus Solicitors

Adjudication Decision Reference: ADJ-00001133

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

Date of Adjudication Hearing: 10/03/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2.     Procedure:

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

2.2. The claim referred to the non payment of statutory redundancy payment contrary to  Section 7 of the Redundancy Payments Act 1967.

3.     Attendance at Hearing:

4.     Complainant’s Submission and Presentation:

4.1 The claimant was working for the respondent from 8th August 2002. He was paid €9.10 per hour and worked on average a 39 hour week.

4.2. On 24th April 2014 the respondent informed the claimant that a need existed to upgrade the mushroom farm to meet Board Bia standards, and the claimant was notified by letter that he was to be laid off until September 2015 when the farm would be operating again.

4.3. In September 2015, as the claimant had not heard from the respondent he wrote to the respondent asking when he could return to his employment.

4.4. On 6th October 2015 the claimant maintained that the respondent replied stating that the upgrade of the farm was to cost considerably more than the respondent had anticipated and as a consequence the respondent decided to take one year out of mushroom production. In this letter the respondent also informed the claimant that he forwarded the claimant’s details to the respondents accountant. As the claimant did not receive any communication from the respondent’s accountant he completed RP9 form and sent to the respondent.

4.5. As the claimant did not hear back from the respondent he then completed a RP77 form and posted it to the respondent. In November 2015 the respondent’s wife and co-worker at the farm met with the respondent by chance and where it was indicated to his wife that the claimant would not receive a redundancy payment. At this point the claimant made a complaint to the WRC.

5.     Respondent’s Submission and Presentation:

5.1. The respondent acknowledged that in April 2015 he notified the claimant that he was to be laid off for a period of months to allow the respondent upgrade the workplace. However when he reviewed what was needed and the cost of same the respondent decided the upgrading would in fact take approximately 12 months to complete.

5.2. The respondent acknowledged to receiving a letter in September 2015 from the claimant requesting an update where he replied in October that he estimated the farm would not be in production again for another 12 months.

5.3. The respondent also acknowledged that he received and RP9 form and subsequently an RP 77 form from the claimant which he provided to his accountant, but he acknowledged that there was no further correspondence with the claimant.

5.4. Notwithstanding the respondent argued that he sought alternative employment for the claimant with mushroom farmers nearby and secured two jobs for the claimant in a number in operations between 16km and 20 km from his home. The respondent contended that the complainant rejected these work offers. The respondent maintained that as he had found alternative employment for the claimant the claimant was not in entitled to redundancy payments. In this regard the respondent confirmed that there was no transfer of undertakings, nor was there any formal offer regarding the alternative employment or statement in writing regarding the continuance of terms and conditions of employment of the claimant and other related matters.

5.5. The respondent further advised that he is no longer operating the business and he is in financial difficulty where he has an overdraft to the bank, and where he has had to seek alternative employment himself as a care worker in Northern Ireland for £10.07 an hour. The respondent therefore contended that the business could not afford to pay any redundancy and should the Adjudication decide that the claimant had an entitlement that such payment would be made through the social insurance fund.

6.     Decision:

6.1. 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; and in relation to breaches to the Redundancy Payments Act 1967 in accordance with the powers set out under Section 39 of that Act.

6.2. Based on the evidence presented I am satisfied that the complainant initially accepted the lay off period on the basis he was to be re-engaged some months later. However as the claimant was subsequently advised in October 2015 that his job would not recommence for at least another 12 months he was entitled under the Redundancy Payments Act to seek redundancy which he did by submitting an RP9 form to the respondent. I am satisfied that the respondent did not respond to the RP9 at the time, and that the claimant subsequently submitted an RP 77 in which the respondent also failed to acknowledge.

6.3. The respondent in his defence is relying on the fact that he found alternative work for the claimant. However whatever arrangement may have been made, if any at all, did not satisfy the requirements as set out in Section 9(3)(a) of the Act; and indeed the claimant argued that no such re-employment was formally offered of formally notified to him by the respondent. I therefore do not find that the claimant was offered employment that could reasonably be regarded as an alternative employment in accordance with the Act.

6.4. I therefore find based on the evidence presented that the claimant has a redundancy entitlement, and was not paid this by the respondent

6.5. The claimant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:

Date of Commencement:       8^th August 2002

Date of Termination:              24^th April 2015

Gross Weekly Pay:                 €354 (39 hours per week at €9.10 per hour)

 This awards is subject to the claimant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Act 2005.

Dated:   7^th June 2016