ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002936

Complaint for Resolution:

At:          Workplace Relations Commission, Dublin 4.     

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 39 of the Redundancy Payments Act, 1967 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.

The Complainant was employed from 3^rd September 2007 until the employment terminated on 1^st March 2016. The Complainant was paid €130.00 net per month and she worked 35 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 26^th April 2016 under the Redundancy Payments Act in relation to her entitlement to Redundancy Payment.

Summary of Complainant’s Position.

On 23^rd January 2016 the Respondent lost a major contract with a named client. This resulted in a 523% reduction in her working hours from 35.75 hours to 17.25 hours a week post 23^rd January 2016.

The named Managing Director of the Company wrote to the Complainant on 8^th January 2016 in relation to the loss of this contract to take effect from 24^th January 2016. In this letter the MD erroneously suggests that the Client had an obligation under TUPE to employ the Complainant. This letter also states that in the alternative she will continue to be employed by the Respondent working on the remaining balance of her work with the Respondent.

The MD again wrote to the Complainant on 19th January 2016 to confirm that her hours of work with the named client would end on 23^rd January 2016 but also referring to her Contract of Employment which provides “THE HOURS OF WORK WILL DEPEND ON REQUIREMENTS OF THE CLIENTS I.E THERE ARE NO GUARANTEED HOURS”. This was also confirmed in a further letter from the MD on 22^nd January 2016.

The MD wrote to the Complainant again on 28^th January 2016 stating that “your regional managers will by now have spoken with you individually to offer alternative work”. The Complainant stated that she had never been offered any alternative work.

The Complainant served a RP9 Form on the Respondent on 19^th February 2016. The Respondent had seven days to respond. There was no response. The Complainant sent a letter to the Managing Director by registered post on 1^st March 2016 resigning from her position and stating her intention to claim redundancy. A completed RP77 Form was issued to the respondent by registered post on 3^rd March 2016.

The Respondent replied in a letter dated 7^th March 2016 which states that the Respondent does not view the situation as short time and refers to the clause in her Contract of Employment and suggests that the 52% reduction in her working hours is not a redundancy situation. The Complainant responds by letter dated 29^th March 2016 stating her entitlement to redundancy.

The Respondent replies by letter dated 11^th April 2016 in which her resignation is accepted by virtue of the RP9 Form issued to the Company. The Respondent also enclosed her Contract of Employment which she had requested. This was provided but the Contract is neither signed or dated and was allegedly issued in 2014.

Summary of Respondent’s Position.

The Complainant commenced employment in 2007. In December 2015 the Respondent was informed of a substantial loss of a contract effective from January 2016. This resulted in all hours being reviewed including the Complainant’s. The Complainant’s hours varied from week to week during her 9 years of employment. Her Contract provides that her hours of work will depend on the requirements of the client. The loss of the contract accounted for circa 50% of the Complainant’s hours.

The Managing Director wrote to the Complainant on 19^th January 2016 stating their intention to redeploy her and allocate her suitable alternative hours. The Complainant did not raise any concerns with either her Line Manager or with HR about her hours. However on 1^st and 4^th March 2016 the Respondent received correspondence from the Complainant with the RP9 Form served on 19^th February 2016 and requesting redundancy...

The Respondent had scheduled client work and hours to the Complainant that week. The Respondent endeavoured to contact the Complainant but with no success as she had gone AWOL.

The Company responded to the Complainant on 7^th March 2016 stating that a redundancy situation did not exist as suitable alternative hours were available and her position was not made redundant.

On the basis of the evidence from both Parties I find as follows:

1. The Respondent both in their submission and in oral evidence at the Hearing repeated that suitable alternative hours were available to the Complainant. However the Respondent was unable to state what hours and when these hours were available. The Complainant stated that she had never been offered alternative hours after 23^rd January 2016.
2. The Complainant satisfied Section 7 (5) of the Act in relation to the requisite period of employment.
3. The Complainant has also complied with Sections 11 and 12 of the Act as amended. The evidence shows, and this is confirmed by reference to Bank Statements in relation to wages paid, that the Complainant’s hours were reduced by more than 50% after 23^rd January 2016.
4. The Complainant served the RP9 Form on the Respondent by letter dated 19^th February 2016. The Respondent did not reply within the specified period of 7 days. The Complainant resigned her position by letter dated 1^st March 2016 and she served the RP77 Form on the Respondent on 3^rd March 2016.

On the basis of my findings above and in accordance with Section 39 of the Redundancy Payments Act, 1967 I declare the complaint is well founded. I direct the Respondent to pay the Complainant her Statutory Redundancy entitlements in accordance with the Redundancy Payments Act, 1967.

Rosaleen Glackin

Adjudication Officer

Date: 15^th September 2016