ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000060

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

Date of Adjudication Hearing: 18/12/2015

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

The complaint relates to the complainant's entitlement to redundancy following a period of lay-off in 2015. The complainant served an RP9 form on the 28^th August 2015, following which the respondent employer corresponded with him about forthcoming work. The respondent employer outlines that the complainant is not entitled to a redundancy payment pursuant to the Redundancy Payment Acts because he was offered subsequent employment.

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Complainant’s Submission and Presentation:

The complainant commenced employment on the 22^nd October 2012 and held a full-time post as a chef. He was initially directly employed by the public house, but the catering function was later out-sourced to the respondent and his employment was subject to a transfer of undertaking. The transfer took place on the 1^st July 2013. He worked between 39 and 55 hours per week and was paid €10 per hour. On the 26^th May 2015, the public house was closed and the complainant placed on lay-off.

The complainant outlined that he had never seen the contract of employment provided by the respondent at the hearing. He said that the Director had telephoned him some 14 or 15 weeks into the period of lay-off. He was offered a once-off placement, which he was not interested in. He had spoken to his colleagues, also on lay-off, and was aware that they had been rostered with more hours. The complainant said that he sent the RP9 on the 22^nd September 2015. In respect of the hours offered by the respondent on the 1^st and 8^th October 2915, but there were too few hours rostered and they were spread over too many days. He said that he was not informed of the location of this work.

Respondent’s Submission and Presentation:

The respondent is an events company and took over the catering service in a named public house, until it went into receivership in May 2015. The public house closed on the 28^th May 2015 and the complainant and the other employees based in the establishment were placed on lay-off. This was communicated to the complainant and the other employees in an email of this date.

The respondent outlined that in the time that followed the lay-off, the Director had made telephone calls to the complainant to offer him work. This included catering work at an international sporting event held on the 25^th July 2015. The complainant said that he could not find a babysitter for this day. The Director said that she used the telephone call to check in with the complainant and asked that he inform her of his availability as she could assign him work. She said that work was now coming in. She said that there had been work, for example at the airport and associated events.

The Director said that all the employees on lay-off, including the complainant had contracted hours of 39 hours per week. During the period of lay-off, the Director said that she had sought to generate work to offer to these employees. Initially, the Director was only able to offer employees short-time hours, but hoped that she would be able to offer the full complement of hours within a few weeks.

In respect of the complainant, the Director said that she emailed him on the 10^th September 2015 to say that progress was being made in securing new work. She wrote to the complainant on the 1^st October 2015 to say that the respondent was returning the RP9 form because his post was not redundant. The letter provides the complainant with 22 hours between the 7^th and 11^th October 2015. No location of work is provided in the letter. The Director said this work was at a landside catering facility in the vicinity of the airport. The complainant did not attend work. In a letter of the 8^th October 2015, the complainant was offered 24 hours over five days between the 12^th and 18^th October 2015. The letter also says that the complainant's employment will be deemed terminated if he did not attend these rostered hours. In subsequent correspondence, it is submitted that his employment ended on the 18^th October 2015.

Concluding, the respondent said that during the period of lay-off, they sought to build up hours rostered to employees as the business developed. They had been disappointed that the complainant had not been in contact to outline his availability or to accept the hours rostered to him in October 2015.

Decision:

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

Issues for decision:

The complainant says that he is entitled to a redundancy payment from his employment after a period of lay-off commencing on the 26^th May 2015. He served the RP9 form on the respondent on the 22^nd September 2015. The respondent denies that the complainant is entitled to a redundancy payment and that he was rostered to work on the 7^th October 2015 and on subsequent dates.

Legislation involved and requirements of legislation:

The question to be decided in this case is whether the complainant is entitled to a redundancy payment, or whether he is disentitled from such a payment as a result of the hours of work rostered from the 7^th October 2015 onwards. It is not in dispute that the duration of the lay-off meets the duration required of the Redundancy Payments Act. There is also no dispute that the work offered to the complainant in October 2015 was at a different location and was for a part-time role. At the hearing, I noted that the correspondence from the respondent did not specify any location and it was the evidence of that respondent that the complainant would have been assigned to different events or work at a facility close to the airport.

Having considered the evidence, the complainant is entitled to a redundancy payment and he is not disentitled to such a payment pursuant to section 15 of the Redundancy Payments Act. The hours of work the complainant was offered were greatly reduced and the location of where he would be working was not specified. It was, therefore, not unreasonable for the complainant to decline the offer of part-time work. I accept that the offer was bona fide, having regard to the email update of the 10^th September 2015, which preceded the RP9 form.

Decision:

The complainant is entitled to a redundancy lump sum under the Redundancy Payment Acts, 1967 and 2007 based on the following criteria:

Date of commencement: 22^nd October 2012

Period of lay-off: 26^th May 2015 to 22^nd September 2015

Date of termination: 22^nd September 2015

Gross weekly wage: €390

This award is made subject to the complainant fulfilling current social welfare requirements in relation to PRSI contributions.

Dated: 3^rd March 2016