ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007310

Parties:

Complaint(s):

Date of Adjudication Hearing: 20/06/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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.

Background:

The complainant was employed as a chef in a Take Away shop for two periods, initially from 12^th September 2009 to 6^th March 2011 and then from 25^th May 2011 until 23^rd January 2017. The complainant submitted a complaint form received by the WRC on 22^nd February 2017. In the complaint form the complainant submitted he did not receive any redundancy payment.

Summary of Complainant’s Case:

The complainant provided a written submission. In it the complainant explains that he injured his back in on 25^th June 2016. He had an MRI on 28^th June which resulted in him having to sign off work. He has been on Illness Benefit since.

On 23^rd January 2017 the complainant received a call from the respondent, the owner of the shop, asking him to call into the shop as he wanted to talk to him. The complainant submits that the respondent told him that things were not working and asked the complainant for a return to work date. The complainant explained to the respondent that it was up to his doctor to decide when he could return to work and that he could not give a definitive answer.

The complainant submits that the respondent then told him that the manager of the shop had no hours for him and needed staff. The complainant was dismayed at this turn of events after seven and a half years' service.

The complainant puts forward that the owner then said he would give him a redundancy package "outside of the statutory redundancy". The complainant said he would get back to the owner with a figure.

On 30^th January 2017 the complainant rang the owner and told him that, using the statutory method of calculation, he believed the figure was €3,200. According to the complainant the respondent laughed at this and said his calculation was that the figure was €1,800 and all he was prepared to offer was €500. The respondent also requested the complainant return his set of keys for the shop. The complainant said he would get back to the owner about the figure.

The complainant then sought advice from his solicitor and the Citizens Advice Centre who referred him to the WRC. The complainant completed an online complaint form and informed the respondent that he had done so.

On 15^th March the complainant received a call from the respondent's son, who acts as accountant for the business. A discussion took place regarding a personal injuries claim being taken by the complainant, the redundancy payment and the WRC. The accountant told the complainant that he had not been dismissed. It was agreed by both parties that it would be better to let the matter go forward to the WRC.

The complainant submits that in June 2016 he was contacted by a solicitor acting for the respondent offering a lump sum to settle the case. However, the complainant refused the offer and chose instead to have the matter adjudicated upon in the WRC.

The complainant gave oral evidence supporting his written submission. In closing the complainant said he was willing to settle and would like a character reference.

Summary of Respondent’s Case:

In oral evidence the respondent stated that the complainant had been sick on numerous occasions during his employment, however, he also maintained that if the complainant had been able to work he would still be working for him.

The respondent said that he had been happy for the complainant to come back to work but that he wanted a letter from a doctor stating that the complainant was fit to return to work. The respondent stated that the complainant's attitude changed when he asked for the fit to return to work letter.

The respondent went on to state that the next letter he got from the complainant was one in which he looked for a redundancy payment, it was also the first time that the owner became aware that a personal injury claim was being pursued by the complainant against him.

Regarding the meeting of 23^rd January 2017 the respondent stated that he had asked the complainant to get a fit to return to work cert but that if that did not work out he would give the complainant a few bob; however, his job was not done away with. The respondent stated that there was no mention of redundancy in this discussion.

The accountant referred to above also gave evidence at the hearing. He re-iterated the view that a redundancy situation had not arisen.

In closing the respondent stated that he had been anxious to resolve the matter but that was not possible in the circumstances. He also stated that the complainant's job is still there.

Findings and Conclusions:

The question that needs to be answered in this case is whether a genuine redundancy situation exists.

Answering this question is made difficult as there is a conflict of evidence in relation to whether the respondent did or did not say to the complainant that he had no more work for him. The complainant says this is what he was told, the respondent says that this was not said at all.

There is also a conflict if evidence in relation to whether the respondent did or did not ask the complainant to start working out redundancy figures. However, the complainant himself put forward that the term used by the respondent was "a redundancy package outside of the statutory redundancy", which would seem to indicate an ex-gratia payment based on statutory redundancy rather than a real redundancy payment.

In addition it seems to me that the complainant has put forward contradictory evidence in that he says the owner told him that there were "no hours" for him but at the same time he says the respondent said he needed staff.

At the hearing the respondent was adamant that a redundancy situation had not arisen and, tellingly, that the job is still there.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

From the evidence adduced I do not believe a genuine redundancy exists and I must therefore refuse the application sought.

Dated:   29^th August 2017

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