ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002692

Complaint for Resolution:

Date of Adjudication Hearing: 18/07/2016

Parties:                                An Employee v An Employer

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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. 

Summary of Complainant’s Position.

The Complainant has been employed with the Respondent from 25^th June 2012 on a full-time basis working 40 hours a week. In January 2016 the Respondent lost a big contract and his hours were reduced by over 50%. The Complainant sought advice he stated from NERA and requested redundancy from his Employer. He sent an email to the HR Department stating he was entitled to redundancy. They responded stating he was not entitled to redundancy and that there were more hours available for him. He had a meeting with the Respondent on 5^th February 2016 and he received an email from a Named Respondent on 12^th February 2015 offering him hours that another employee was working. He was never given additional hours.

When the Respondent lost more contracts his hours were reduced to 16 hours a week. At this time he was given a new contract of employment which in effect was a zero hours contract which he refused to accept. He again requested redundancy. He again contacted NERA following which he served a RP77 Form on his Employer on 24^th March 2016 and he received a response saying the company does not view his situation as a redundancy situation and that there would be hours available to him and citing the zero hours contract to him. The Complainant left the employment on 29^th April 2016.

Summary of Respondent’s Position

The Respondent disputed the Complainant worked 40 hours a week up to January 2016 when the Respondent had been notified of a substantial contract loss. This resulted having to review hours worked by the Complainant as the lost contract accounted for 37% of his hours worked each week.

The Complainant contacted the Respondent on 18^th January 2016 enquiring about his entitlement to redundancy. The Complainant emailed the Respondent on 25^th January 2016 again requesting redundancy as his hours had been reduced. The Company responded to inform him that hours were available to him (The Respondent was unable to inform the Adjudication Officer at the Hearing what hours were made available to the Complainant).

The Respondent had a meeting with the Complainant on 5^th February 2016 where it was explained to him that suitable hours were available to him if he wished to complete these hours. The Respondent stated that the Complainant was offered suitable alternative hours to help negate the hours lost. The Respondent referenced a number of emails – copies provided.

The Complainant sent the Respondent a RP77 Form on 24^th March 2016 requesting redundancy and the Respondent replied by letter dated 30^th March 2016 stating it was not a redundancy situation and that there were hours available and that his position had not been made redundant.

The Complainant gave one day’s notice of termination of the employment on 28^th April 201 and he left 29^th April 2016

Findings

The Respondent disputed that the Complainant was working a consistent 40 hour week. The Respondent provided me with the payslips for the Complainant from July 2015 to the termination of the Employment. These show that the Complainant was a full-time employee with very slight variation in his hours each week. Therefore I find that the Complainant was a full-time employee.

Both Parties confirmed that the Respondent lost a major contract in January 2016 and that this resulted in the Complainant’s hours being reduced, the Complainant stated to 20 hours a week, the Respondent was unable to state what the Complainant’s hours were reduced to.

The Respondent stated that there were hours available to the Complainant if he wished to complete them and the Respondent provided copies of emails to the Adjudication Officer which they stated would confirm the Complainant had been offered additional hours. I have reviewed all the emails from the Respondent to the Complainant from January and February 2016. However with the exception of one email on 12^th February 2016 offering an additional 8.5 hours a week the others clearly state that the Respondent is seeking to find suitable alternative hours. The offer of an additional 8.5 hours was in response to the Complainant’s letter of 5^th February 2016 in which he states that he had worked 13 hours the first week of February and that he was scheduled to work 16 hours the following week.

The Complainant served a Form RP77 Form on the Respondent under the Redundancy Payments Act, 1967 – 2007 on 24^th March 2016.

The Respondent replied on 30^th March 2016 stating a redundancy situation did not exist and that there were (unspecified) hours available to him.

Section 12 of the Act provides that “An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless – (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of 13 weeks, for a series of six or more weeks of which not more than three were consecutive and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than 4 weeks after the cessation of the lay-off or short-time, he gives notice to his employer….in writing of his intention to claim redundancy payment in respect of lay-off or short-time. Section 12 (2) of the Act requires the employee within a specified period of 4 weeks after the cessation of the lay-off or short-time to terminate his employment.

The Complainant served the RP77 on his Employer by reason of short-time on 24^th March 2016 and he gave notice of termination of the employment verbally on 25^th April 2015 and this was confirmed in writing on 29^th April 2016.

Decision:

Section 41(5) 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.

On the basis of my findings above and in accordance with Section 41 (5) of the Workplace Relations Act, 2015, I declare the complaint is well founded. The Complainant served notice of redundancy due to short-time work on the Respondent on 24^th March 2016 and he gave notice to his Employer of the termination of the employment on 25^th April 2016 and this was confirmed in writing on 29^th April 2016.

The Complainant has complied with Section 12 of the Redundancy Payments Act, 1967 – 2007

I direct the Respondent to pay the Complainant his Redundancy entitlements under the Redundancy Payments Act within 42 days of the date of this Decision.

Date: 7 November 2016