ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005579
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Officer | A Security Company |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00007791-001 | 25/10/2016 |
Date of Adjudication Hearing: 12/06/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Location of Hearing: Room 4.02 Lansdowne House
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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 Security Officer from 1st September 2008 to 2nd September 2016. He was paid €387.00 per week. He has claimed minimum notice following a lay-off. |
Summary of Complainant’s Case:
It is the Complainant’s position that the Respondent had no reasonable expectation that the lay-off would be temporary and they referred to Sec 11 (1) of the Redundancy Payments Acts. The Respondent’s letter dated 22nd July stated that they were experiencing a significant reduction in work. However subsequent conversations with the company it was made clear that they had no work and were requesting that the Complainant sign the RP9 form and return it to them. Without a reasonable belief that the company would have been able to provide work he was entitled to be informed that his position was redundant and he should have been made redundant, including his minimum notice as is requited under the Act. He cited the EAT cases Ferrick v Monaghan Poultry Products Ltd MN 2795/2001 and Hayes v O’Kelly Bros Civil Engineering UD 268/2001. It is his belief that the Respondent had no reasonable belief that the cessation was temporary due to the fact that within week of informing him they contacted him requesting that he return the RP9, thus claiming his redundancy. He is claiming 4 weeks notice amounting to €1,548.00. |
Summary of Respondent’s Case:
The Company has experienced economic turmoil since 2008 in particular and has faced severe competition to maintain a viable share in this fragile market. The nature of client contracts in this industry requires the company to be at all times reactive to the customer needs and this necessitates their immediacy in responses to both contract extensions and closures. This imperative necessitates their ability to deploy personnel both flexibly and nationally. These market place requirements periodically entail their need to place staff on Lay-Off and /or less shifts awaiting further client contracts and associated deployment within an employees’ normal regional work locations.
In the period July /August 2016 it became necessary to lay off 9 employees. Each of the employees was issued with a temporary lay-off notice RP9 and so were waiting for future opportunity for redeployment. Some 6 week s later on 2nd September 2016 he voluntarily tendered his resignation by signing the second part of the RP9 form and returned it to the Respondent. The RP9 form states, “an employee who claims and receives a redundancy payment in respect of lay-off or short time is deemed to have voluntarily left his /her employment and therefore is not entitled to notice under the Minimum Notice and Terms of Employment Acts 1973 to 2001”. On receipt of this he was issued with redundancy. The Minimum Notice and Terms of Employment Act in Sec 5(2) states, “This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short time given by his employer”. In Sec 5 of this Act it states “, An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment!. They cited the EAT case Darcy v McLoughlin Painting Contractors Ltd MN 94/2007 in support, “The obvious disadvantage to an employee who chooses to take voluntary redundancy in a situation of a lay-off is that the employee disentitles himself to work out a notice period or get paid in lieu”.
This complaint is rejected.
Findings and Conclusions:
I note the conflict of evidence in this case.
I note that the Complainant alleges that the Respondent requested him to sign the RP9 and return it to them. This was allegedly done through ‘phone calls.
I note that the Respondent denies this.
I find that there was no written evidence of any request from the Respondent to sign and return the RP9.
I note that the Respondent rejects the allegation that they made his position redundant.
I note that they wrote to the Complainant on 22nd July 2016 stating “This reduction in work level requirements has left us in a position whereby we are obliged to notify you of this situation and regretfully have to temporarily lay you off”.
I note in their email dated 22nd August 2016 it stated “may have to make your position redundant”. This confirms the Respondent position that they did not state that his job was redundant.
I note that the Complainant advised the hearing that he had encountered financial difficulties at this time.
I note that the Complainant took advice from his union and signed and returned the RP9 seeking redundancy.
I note that he confirmed that he was aware that the form stated, “an employee who claims and receives a redundancy payment in respect of lay-off or short time is deemed to have voluntarily left his /her employment and therefore is not entitled to notice under the Minimum Notice and Terms of Employment Acts 1973 to 2001”. However he was advised by his union that they would contest this but that he needed the redundancy money due to his financial circumstances.
I note that the union emailed the Respondent on Wednesday 31st August 2016 stating, “ We would be obliged if you would confirm that the Complainant has been placed on temporary lay-off , and if he has been requested by the company to complete the RP9 form, in order that this office may properly advise him of his entitlements, under the Redundancy Payments Act and Minimum Notice Act”.
I note that the Complainant did not await the Respondent’s response and by Friday 2nd September 2016 signed and sent to the Respondent the RP9 form.
I note that by doing so the Respondent then implemented the redundancy however they interpreted his actions to mean that he had forgone the minimum notice as per the Act and the statement on the RP9 form.
I note that he advised the hearing that he didn’t wait for a response from the Respondent due to his financial difficulties.
Therefore I must conclude that he initiated the request for redundancy knowing that he would not receive minimum notice and that his union would contest it.
Decision:
Section 41 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.
For the above stated reasons I have decided that the Complainant was on a temporary lay-off.
I have decided that the Complainant’s allegation that the Respondent requested him to apply for redundancy by signing the RP9 was not supported by evidence. Therefore on the balance of probability I have decided to reject that.
I have decided that the Complainant made a decision to sign and return the RP9 knowing that he would forgo the minimum notice but that this would be contested by his union.
I have decided that by signing the RP9 he was forgoing the minimum notice as per the statement on the RP9 and cannot then seek to undo that action.
I have decided that he is not entitled to minimum notice.
I have decided that his complaint should fail.
Dated: 06 July 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Minimum Notice |