ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006817

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/04/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or where otherwise specified, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter under the Redundancy Payments Acts 1967 to 2014 and in particular he is making the case that his position was made Redundant and he is therefore entitled to be paid out of the Redundancy Payments Scheme.

Background:

The Complainant brings his claim by way of a workplace Relations Complaint Form dated the 23^rd of January 2017. The Complainant makes the case that there was no work for him from the end of October 2016. The claim is therefore brought within the appropriate Time Limit.

Summary of Complainant’s Case:

The complainant had been working with the Respondent Security Group (and it’s predecessor) since 2006. The position held was fulltime and he was expected to work for 35 hours each week.

In the middle of October 2016 the Complainant noted that his Roster was not allowing for the full complement of hours he should normally be working. The Complainant emailed his Direct Line Manager but got no response. This happened a few times including the 17^th and 24^th of October.

The Complainant was rostered a full complement of hours for the period from the 7^th of November to the 17^th of November but these were unexpectedly withdrawn by an individual (called M) on the 3^rd of November. M said he would be back in touch with new hours in due course.

It is common case that there is a system in operation (MUT) which is a stand alone email address wherein employees can lodge complaints where they are being rostered incorrectly and more importantly where they are being rostered for fewer hours than their Contract stipulate. It was open to the Complainant to lodge an internal complaint through this system.

Summary of Respondent’s Case:

The Respondent seemed unaware of the series of emails (sent in October 2016) presented in the course of the Complainant’s evidence. There was certainly no response made by the employer to them and the evidence appears to be that they were overlooked rather than ignored. The Respondent said it wrote a number of letters to the Complainant’s home about his availability though these were not responded to and the Complainant says he never got them.

The Respondent provided me with a list of phone calls it said it made to the complainant from the middle of November 2016 through to March of 2017 wherein he was phoned on a weekly basis to discuss availability. The Complainant never returned these calls.

Findings and Conclusions:

It is hard to reconcile the two differing accounts here. The Complainant has a long service with the company and yet appears to have become uncontactable from the middle of November which is when records show that efforts were made by the Employer to contact him. I find that there was a period of time between the 3^rd and the 14^th of November when the Complainant may have been unsure as to where he stood. He had been advised by M that he would be given details of new Rosters when the ones already allocated to him had been removed without explanation.

The Complainant did not try and touch base with the company at this time and instead relied on the Bona Fides of M and seems to have assumed that when M did not come back to him that his Job was terminated.

There was never any suggestion of a Redundancy and I am not sure how the Complainant came to believe that there was insufficient work for him or that the position he held was now gone. He however did submit an RP77 in and around 14^th of December 2016.

The Complainant never availed of the MUT process and this is regrettable because, on the face of it, it seems that the Complainant was overlooked for roster inclusion from the 3^rd of November with no real explanation given. There is no suggestion of Mala fides on the part of the Employer and it seems that the Complainant was just not included by mistake. Had the Complainant triggered the MUT process this would have triggered the Employer into some action it is to be presumed.

As it was, and I accept this evidence, the Employer was making regular phone calls to the employee to see if he was available for work and was being met with a wall of silence.

The Employee’s stance is unusual and whilst I have no difficulty in finding that the Employer failed the Employee in the initial two week period after the 3^rd of November conversation with M, the Complaint made no effort to contact his Employer and instead moved to deem himself Redundant, whilst at the same time ignoring the many efforts made to contact him by phone

Decision:

I am conscious of the fact that the Redundancy Payment Scheme can only apply where a genuine Redundancy exists. I do not find that a genuine redundancy exists in the circumstances outlined to me and I must therefore refuse the application sought.

Dated:   18^th July 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath