ADJ-00001219

ADJUDICATION OFFICER DECISION

A Chef – V – A Catering Company

Adjudication Decision Reference: ADJ-00001219

Complaint 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-00001621-001	21/12/2015

Date of Adjudication Hearing: 22/03/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

This case refers to a claim for redundancy payment by Chef who contends that following a lay-off in June 2015 he was not offered sufficient employment by his employer in September 2015 and therefore he was entitled to a redundancy payment. The employer maintained that following a layoff the complainant was offered his job back and therefore he is not entitled to redundancy payment as he left of his own accord.
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.

Attendance at Hearing:

By	Complainant	Respondent
Parties	Robert Clarke (A Chef)	Kyles Events Limited (A Catering Company)
Representative	Tiernan & Company Solicitors represented by Ms Helen Whatley, Barrister and Ms Christine Cannon, Solicitor	Mr John O’Mahoney, HR Consultant
Witnesses		Ms Carol McCaughy, Director

Complainant’s Submission and Presentation:

The Claimant worked in a Public House as a chef since May 2003. He contended that in or around 2013 the respondent took over the operation of the kitchen at the public house and where his employment was transferred to the respondent without any break in service.
The claimant contended that he was made redundant on 28^th May 2016 when the public house, which was his place of work, was closed down unexpectedly. In this regard the claimant maintained:
1. That on 28 May 2015 he was informed by email that the respondent was temporarily unable to provide work to the staff, and that he could present to the social welfare office. The email also advised the claimant that the respondent hoped to have more information in the next few days.
2. The claimant contended he had limited contact from the respondent for the next number of weeks despite his attempts to contact the respondent requesting information, but no information was forthcoming. The claimant also maintained that he requested his redundancy lump sum but was informed that the respondent was conducting meetings to resolve the issue in relation to the redundancy.
3. The claimant further contended that around 10 September 2015 he received an email from a Director of the respondent stating that as a result of adverse trading conditions over the previous few months the respondent was in the process of finalising restructuring arrangements. In this correspondence the claimant was advised that this was why the layoffs had been implemented, and that the company was working hard to maintain their existing business and to develop new opportunities. The claimant maintained the email suggested that he would be rostered back for work in the coming weeks. The claimant further argued that this occurred despite his attempts to seek his redundancy payment as he had been out of work for around 15 weeks at this stage. He therefore viewed the respondent’s response as an attempt to evade its statutory obligations to make a redundancy payment.
4. The claimant maintained that in or around 16 September 2015 he received an email from respondent stating that he was being put back on roster commencing 21 September 2015, and where he was advised his weekly roster will commence initially on short time but will be in excess of 50% of his normal hours. (The claimant noted it was only an hour over 50% of his normal working time). The claimant argued that the respondent also indicated that they would review the business and the available hours on an ongoing basis to see if they can offer more hours as they progress. The claimant maintained that he was surprised to receive this notification as he had already applied for his redundancy lump sum payment and argued by that point he had in fact been made redundant. He again contended that the offer to roster him for work at this stage was clearly an attempt by the respondent to avoid having to pay him his statutory entitlements.

The claimant further contended that the suggested place of work was a new location, on reduced hours, and with no security. He advised that prior to the closure of the public house he had applied for mortgage approval and could only have secured the mortgage based on a full-time salary. He therefore was not in a position to accept the reduced hours and new place of work, and informed the respondent accordingly where he contended he again asked for his redundancy lump sum payment. He submitted a RP 77 and Rp9 for his redundancy payment.
The claimant maintained that when he submitted his RP 77claim to the respondent refused to accept this request despite the fact the claimant had repeatedly asked for his redundancy payment. At the hearing the claimant advised that he had sought this payment when talking to his supervisor during the course of the lay off period.

The claimant submitted that he has a right to redundancy in accordance with section 7 of Redundancy Payments Act 1967 and furthermore section 10 of the Redundancy Payment Act 1971 states that there is a presumption the person who was dismissed is dismissed by reason of redundancy. He also argued that as he was employed over 104 weeks he was entitled to redundancy payment in accordance with schedule three of the Act.
The claimant also contended that in accordance with section 7 (3) of the Act he was laid off for a period of four or more consecutive weeks and he did not receive work or any remuneration from 26 May 2015. He communicated his intention to claim redundancy from the respondent although he did not submit the RP 77 claim until after he received notification from his employer that he was to be rostered for work from 21^st of September 2015. In relation to S7(2) of the Act the claimant also maintained that the work for which he was employed (sous chef) in the public house ceased by virtue of the fact the public house ceased trading. He argued that it was therefore clear he had a legitimate redundancy under section 7(2) of the Act. In this regard the claimant submitted that a former colleague and employee of the respondent successfully brought a case to the workplace relations commission for his redundancy payment where it was determined by the Adjudicator that his colleague was entitled to the redundancy payments.
The claimant further maintained that he was not provided with any notice of his layoff prior to the decision to lay him off, or thereafter. In this regard the claimant argued that the respondent failed to comply with S11 of the 1967 Act.
The claimant referred to the case of Industrial Yarns Ltd v Greene [1984] ILM 15 Costello J. where it was held that when the requirements for layoff are not met the employee is entitled consider the contract of employment to have been repudiated. In this regard the claimant argued that as the lay-off procedures were not properly invoked by the respondent, and where the respondent in this case did not give adequate notice to the claimant, it was therefore reasonable for the claimant to believe that the cessation of employment was permanent. In this regard the claimant argued that it was not until he made enquiry from his supervisor and subsequently indicated he would be making a claim for a redundancy payment that the respondent replied, some 15 weeks later, by suggesting to re-roster him but at a different work location and on short time. In this regard the claimant argued that the respondent has failed to comply with section 13(2) of the 1967 Act which requires the respondent, within seven days after the service of the notice of intention to claim redundancy, must give to the employee notice in writing that he will contest any liability payment redundancy in pursuance of the notice of intention. The claimant argued the respondent failed to contest his application for redundancy.
In addition the claimant argued that as he never received formal notification of a layoff period, the respondent could not now rely on issuing him with such notice after he had submitted his RP77. In summary the claimant maintained that when he provided the respondent with notification of the claim for redundancy he received no response to this notice and instead the respondent simply refused to accept his request for the lump sum payment.
The claimant also maintained that contrary to the Act, he was not offered alternative employment. He was offered work only after he pursued his redundancy payment, and the work that was in fact offered was at a different work location and with no guarantee of similar hours work to what he enjoyed prior to 26^th May 2105.
The claimant therefore argued that the offer made to him on 16^th September 2016 was simply a ruse on the part of the respondent to get out of their obligations under the Redundancy payment Act 1967.

Referring to the change of ownership of the business in 2015, the claimant referred to S10 of the Redundancy Payments Act 1971 where there is a presumption that person employment is continuous. Furthermore it was argued that in accordance with S20 of the 1967 Act, where new owner takes over the business the employer will be stopped from denying that the employee was not in continuous employment unless within 26 weeks of the change of ownership he notifies the employee of his intention to so deny. The claimant maintained that no such notice was served on him in 2013 and therefore maintained that he was in continuous service from when he commenced his or original contract in 2003. In this regard claimant maintained he had 12 years’ service with the respondent.
The Claimant earned a gross salary of €612.72 per week for a 37 hour week at the time of his redundancy.

Respondent’s Submission and Presentation

The respondent is a catering and events service provider providing catering and events services to multi-client businesses and private clients. In June 2013 an agreement was reached between the respondent and owners of a public house for the respondent to provide catering services commencing on 1^st July 2013. This agreement provided that the respondent would provide the staffing requirements, food, and preparation of culinary services and where the public house would provide the allocated catering space and all other facilities such as ancillary staff, utensils, cutlery., fixture and fittings.
The respondent maintained that the claimant was offered a catering and events operative position with them to work across all business clients, and where the claimant accepted this appointment where his terms of employment matched his previous employment at the public house. In this regard the respondent maintained that it issued the claimant with a P45 on 19 July 2013 at which time is hours were generally rostered at the public house and where he was also rostered to work with clients from time to time.
The claimant maintained the public house closed without notice 26^th of May 2015 due to insolvency, and on 28 May 2015 the respondent corresponded with the claimant advising him of the closure and of his layoff situation.
The respondent contended that Directors worked tirelessly to replace the public house business and other businesses contracts that were coming to an end.
In its submission the respondent also provided confirmation that it had e-mailed the claimant on 23 July 2015 advising him that they were aware he had been in contact with his supervisor (and a Director), and that he could call into them to discuss matters. .
The respondent maintained that it was subsequently successful in finding new work and confident that the claimant would be phased back to his job and his hours would normalise in time.
On 10 September 2015 the respondent maintained that it advised the claimant that his layoff period was coming to an end and he would be rostered back to work shortly. The respondent argued that it received no acknowledgement from the claimant to this communication where it contended that it made phone calls to the claimant but these were not returned.
On 16 September 2015 the respondent emailed claimant his proposed work hours for the week commencing 21^st of September 2015 and acknowledged that the number of hours rostered at 25 hours represented a working week in excess of 50% of the claimant’s normal working hours. The respondent argued that it was confident the claimant would have his normal 37 hours restored in the coming weeks. It advised that its correspondence of 16 September 2015 went unanswered, as did phone calls that were made to the claimant.
The respondent continued to attempt to make contact with claimant in the following days, and on 22^nd of September 2015 it received a RP77 form and a RP9 form dated 21 September 2015. In this correspondence the claimant advised he was seeking his redundancy as he had not received any work over the past 16 weeks.
The respondent maintained that it subsequently wrote to the claimant on 28^th September 2015 where it summarised its position to the claimant, and where the respondent contended that the claimant had not been made redundant and that work was now available for him.
The respondent therefore denied that the claimant was entitled to a redundancy payment.

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. Section 39 of the Redundancy Payments Act, 1967 required that I make a decision in relation to any contraventions under the Redundancy Payments Act.
The decision before me is whether the claimant is entitled to receive a redundancy payment in accordance with Section 7 of the Redundancy payments Act 1967, and if so what the amount of payment should be.
I am satisfied that the claimant received notification from the respondent by e-mail on 28^th May 2015 advising him that his place of work was closed, that the respondent was temporarily unable to provide him with work, and where the respondent committed to provide further information to the claimant in a matter of days. The claimant did not receive any further update in relation to his work arrangements until 10 September 2015.
Whilst the respondent is relying upon its e-mail of 28 May 2015 as notification of a lay-off, the e-mail did not in fact refer to the claimant being placed on a lay off or short time period. As such the respondent has not complied with S11(1) of the 1967 Act, and at best its communication to the claimant on 16^th September 2015 might be deemed to satisfy section 11 (1) of the Act. However this written notification was issued some 16 weeks after the respondent was last provided with work by the respondent.
I am also satisfied that the claimant had made contact with the respondent in the intervening period by speaking with his supervisor and a Director of the company. This is confirmed by the respondent’s e-mail of 23 July 2015. Despite acknowledging the claimant was in touch with the Director regarding his work position, the respondent again failed to put the claimant on notice as is required under S11(1) of the Act. It was not until 16^th September 2015 some eight weeks later (from 23 July to 16 September) that the respondent appears to have made any attempt to comply with S11(1) of the Act, and then only after the claimant had sought clarification on his situation from one of the Directors and had indicated he would be seeking redundancy payment.
I therefore determine that the respondent has not met with the requirements for layoff, and as per the jurisprudence established in Industrial Yarns Ltd v Greene [1984] ILM 15 Costello J. I find the complainant is entitled to consider his contract of employment to have been repudiated. Accordingly I determine that the claimant is entitled to redundancy payments in accordance with S7 of the 1967 Act.
With regard to the claimant’s entitlements, I am also satisfied that his employment must be treated as continuous service. The respondent has acknowledged when it took over the catering business of the public house in 2013 it undertook to employ the claimant on the same terms and conditions that he enjoyed whilst working for the public house. As such, and in accordance with S20(2) of the 1967 Act I find that the respondent, immediately after the change occurred, was the owner or part owner of the business in question and renewed the claimant’s contract of employment. On that basis the claimant is protected under the Act and I therefore determine that he is entitled to a redundancy payment based on a length of service that commenced in June 2003.
I therefore find that the claimant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts 1967 and 2007 based on the following criteria:

Date of commencement: June 2003 to 21 September 2015
Weekly salary €612.72 per week
Period of lay-off 26^th May 2015 to 21 September 2015
Date of Termination: 21 September 2015

Dated: 26^th May 2016