ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002224
Complaint for Resolution:
Act
Complaint Reference No. Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
CA-00003022-001
03/03/2016
Date of Adjudication Hearing: 30/06/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle.
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967-2007, 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 work as a Housekeeper on a seasonal basis in the respondent guesthouse in April 2000.She continued in employment until she commenced sick leave due to a serious illness on 27 April 2009 and returned to work on 7 May 2010. As the complainant was a seasonal worker, her pattern of work commenced every April until October when the guesthouse closed for the season. The intermittent periods were covered by either job seekers benefit or in the case of the period of illness in 2009/10, Illness Benefit from the Department of Social Protection.
In 2011, the respondent opened a Café and the complainant became the baker and provider of all cakes to the Café. This necessitated an early start at 4 am -9am.
The Café traded for 5 years when the respondent made a commercial decision to close the café in November 2015. At close of season in 2015, the complainant was working a 25 hr week on €13 an hour.
The complainant was informed that her position as a baker was to cease at the close of the 2015 season. The complainant applied for redundancy. This was rejected by the respondent .The complainant completed RP 77 as advised by Citizens Information and submitted it to the respondent without receiving a response.
She was offered 2 to 3 shifts of ironing and wash up shifts with a potential for an increase in hours during the 2016 season. This was followed up on December 9,, 2015, in an e mail communication where the complainant was requested to await the commencement of season to address the redundancy issue. The respondent informed her that she was being offered similar work as before and requested that she could revert by March 20th 2016.The complainant did not accept that this was a suitable alternative offer .
The claim for a Redundancy Payment was received on March 3rd 2016 at the WRC.
Respondent’s Submission and Presentation:
The Respondent operates a family run Guest House during the summer months. The complainant was employed as a Housekeeper from 2000, responsible for cleaning guest’s bedrooms. The season lasts for 26 weeks out of 52, at the end of each season; the complainant was furnished with her P45 and re-employed the subsequent season.
The respondent opened a tearoom in 2011 and the complainant commenced work there as a baker on 25 hrs per week for 5 seasons until the decision was taken to close this aspect of the business. There were 5 staff involved in the tearoom/gift shop and all were subsumed back into the business, with the exception of the complainant who chose not to accept the offer made to her.
This offer was advised as approximately 15 hrs a week in Household work with a potential to increase hours during the season. The respondent explained at the hearing that the hourly rate was proposed as €12 per hour; however, in an email to the WRC dated March 1st 2016, the respondent mentioned €13 an hour.
Initially, the respondent had asked the complainant to await the 2016 season opening before advancing her claim as they were clear that the offer of work was fair and comparable to the 2015 work in the complainant’s case.
On the day of the hearing, the respondent reconfirmed the suitability of the offer of employment for the complainant and contended that it did not satisfy a redundancy situation. She stated that the work was in the same location. It was not heavy work and a Porter was available to carry sheets to assist. She recalled that the complainant had carried in excess of 3 kg Flour bags whilst engaged in baking.
Issues for Decision:
I must decide if the circumstances as described meet the definition of Redundancy set down under the Redundancy Payments Acts 1967-2007. (The Acts)
Legislation involved and requirements of legislation:
The Legislation involved is Section 7(2) of the Redundancy Payments Acts 1967-2007. A redundancy situation is defines 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 one of the following situations :
……….7(b) Where the requirements of that business for an employee to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.
The EAT held in St Ledger v Frontline Distributors Irl Ltd [1995]ELR 160 that Redundancy is based on impersonality and change and it is addressed to the position rather than the person .
I must also consider Section 15 of the Act of 1967, as amended by Section 19 of the Redundancy Payment Act of 1971 in relation to whether the offer of employment proposed by the respondent was a suitable offer?
Disentitlement to redundancy payment for refusal to accept alternative employment.
S.15.—(1) an employee shall not be entitled to a redundancy payment if
(a) His employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,
(b) The provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract
(c) The renewal or re-engagement would take effect on or before the date of the termination of his contract and
(d) He has unreasonably refused the offer.
(2) An employee shall not be entitled to a redundancy payment if
(a) His employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,
(c) The offer constitutes an offer of suitable employment in relation to the employee,
(d) The renewal or re-engagement would take effect not later than four weeks after the date of the termination of contract, and
(e) He has unreasonably refused the offer.
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 and Section 39 of the Redundancy Payments Acts 1967-2007.
The complainant presented a Revenue record to the hearing which gave a snap shot of her salary received from 2007 onwards. This excluded the 24/04/2009 to 7/5/2010 period, for which the complainant presented a Department of Social Protection signed statement of illness benefit .The respondent in turn presented similar confirmation from the company Accountant.
It is common case that the complainant commenced work in Household in April 2000 and diversified to baking in 2011.
The Minimum Notice and Terms of Employment Act 1973 define continuity of service as:
Section 1:
The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by
(a) the dismissal of the employee by the employer
(b) the employee voluntarily leaving his employment
The complainant, therefore had continuous service from 2000-2015 with one exclusion period of sick leave in 2009. Sick leave is permitted under the Act.
At the hearing, I heard evidence from both parties on the closure of the café and gift shop. For the respondent, it was a commercial decision, for the complainant, it signalled a premature ending to a job she liked. I must decide whether the events as described constitute a redundancy situation .It is clear that Sec 7(2) b of the Act applies as the café closed leaving a viable Guesthouse business still in seasonal operation.
I must now address the second part of the test, whereby I must address the offer made to the complainant over the course of winter and Spring 2015/2016 to return to work in the guesthouse. Both parties presented to the hearing in a very professional manner and both were honest in their interpretation of the offer of further employment.
The respondent had seen all the remaining staff subsumed into the remainder of the business and addressed the offer to the complainant in good faith with a real expectation that her contractual hours could be realised during the season. The complainant submitted that this was not a suitable offer given the onerous burden, shortfall in 10 hours a week, and her residual health problems following her medical diagnosis.
I examined Gordon V Asahi Synthetic Fibres Irl Ltd RP/29/98 as a decision of the EAT which allowed a redundancy in a case of continuous absence through illness.
Section 15 of the Act sets out the conditions which may disentitle an employee to redundancy. I have considered these terms and applied them to the facts of this case. I find that the offer of alternative employment deviated in a large part from the complainant’s role of baker in terms of hours of work, quantum of hours, and the scope of the role. I accept that the respondent took the right and proper course of action by consulting with the complainant; however, I do not find that the offer was a suitable offer and on that basis, the complainant was not unreasonable in refusing it. In coming to this conclusion, I am assisted by Joyce V Duffy Meats ltd T/A Kerry Foods RP442/2008 which determined that a Redundancy situation had followed in an analogous situation.
In those circumstances, I find that the complainant is entitled to a lump sum payment under the Redundancy Payments Acts 1967 to 2007 based on the following criteria :
Date of Commencement: April 28 2000
Date of Termination of employment: 28th April 2016 (notification received on October 30, 2015)
Gross Weekly Pay: €325
Exclusion Period: 24 April 2009- 7 May 2010.
As the complainant was a seasonal worker, the award is calculated on her 26 weeks service per calendar year.
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
I note the complainant’s submission on the reckonable period for calculation of Redundancy both at the hearing and in her supplementary submission. I hope I have addressed those concerns in my decision above.
Dated: 2nd September 2016