ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005013

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00007077-001	19/09/2016

Venue: WRC; Lansdowne House, Dublin 4.

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 39 of the Redundancy Payments Act 1967 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 Customer Service Representative from 5^th March 2012 to 20^th October 2016. He was paid €927.00 per fortnight. He has claimed that he is entitled to redundancy.

Complainant’s Submission and Presentation:

The Complainant was employed as a customer service representative. He was issued with a letter of a risk of Redundancy on August 11th 2016 and entered into a 30 day consultation process subsequently finishing on the 1st of September 2016, initially the consultation was due to finish on the 9th but the company made the agreement to close consultation early and pay out the remainder of the 30 days. He was voted in to be 1 of 2 consultation representatives for a group of 10 agents very shortly after the consultation process was announced. Throughout the process there were arranged meeting/agenda forums with hierarchy in regards to have any questions answered or to raise any concerns one might have in the hope of preventing redundancy. During these meetings/ agenda forums he raised questions that were answered by a General Manager and 2 HR representatives and sent by email to himself and the other representative in the form of minutes of the meeting. A question was raised in one particular meeting/agenda forum on 19th August as to what role was attributed to another contract that was still in existence within the building and actively running, the question asked was ' is the role a customer service role or technical support role'? He received a reply from the minutes of the meeting from 19th August from the General Manager and HR Consultant on the 23rd of August with an answer to the question. It stated that they were unsure of what the actual role was, ie. they could not give a definite answer to whether the active role was indeed a Customer Service role or Tech Support role, and that if any of these roles became available to any of our team throughout the process a Trial Option would be offered meaning that you could Revert back to the redundancy if one deemed the role unsuitable. Subsequently on the last day of the consultation process,1st of September, 3 roles within the active contract became available and were offered on a FILO basis, First In Last Out, with some opting to take the roles and some opting to take redundancy. He was one of the agents who opted to take one of the roles knowing that if indeed the role was unsuitable the trial option would still be adhered to. He was issued with an Email from the HR Representative stating that he was no longer at risk of redundancy and that his terms and conditions remained unaltered, no new contracts or any change in conditions had yet and have never been signed. He started training in the new role on 5 September 2016 and on Monday 12th September 2016 at 4:16pm he emailed the General Manager stating that he would like to exercise the option of reverting back to redundancy. The General Manager replied on September 14th 2016 at 2:14pm to tell him that he would like to call and discuss the situation. On September 16th at 12:00pm he spoke on the phone with the General Manager confirming that the option of redundancy has been 'taken of the table and is no longer available', he asked why this was the case and why could he not receive his redundancy to which he replied 'he will take it away but changing the decision is highly unlikely'. He spoke again with the General Manager confirming 'the company have not changed there stance on the matter and that the option to revert back to redundancy was definitely not available'. He then advised the General Manger that he would refer this dispute to the Workplace Relations Commission. He consulted with the WRC who advised that he could not take a claim for redundancy if he was still employed with the Respondent. He then decided to resign his position on 20th October 2016. He found a new job on 24th October 2016. He is seeking redundancy and bonus pay that had been previously offered.

Respondent’s Submission and Presentation:

The Complainant worked as a Customer Sales Representative. His contract required that he was to be flexible in his position. On 11^th August 2016 he and 11 others were issued with a risk of redundancy letter. The Respondent then entered into a 30 day consultation and he was elected a staff representative. Selection for redundancy was on the basis of Last In First Out. During this consultation the Respondent was sked if any jobs existed on other sites. On 1^st September 2016 three roles became available and the Complainant was offered and accepted one of them. Some staff did take redundancy when they could have stayed but this allowed others to hold their jobs. The Complainant did not exercise his right to take redundancy. On 1st September 2016 the Complainant received written confirmation that he was no longer at risk of redundancy and that his terms and conditions of employment remain unaltered. This job transfer involved no change in work location or in terms and conditions of employment. On 12^th September 2016 he emailed the General Manager stating that he would like to exercise the option to taking redundancy. On 16^th September 2016 the General Manager informed him that the option of redundancy was no longer available.

It is their position that the Complainant’s role was not made redundant. His contracted provided that he could be moved to other contracts. He had been on other contracts previously. No termination of employment had taken place. His new role was in the same building and on the same floor. He was still employed by the Respondent when he referred his complaint to the WRC on 19^th September 2016. He worked for the Respondent for seven weeks before resigning his position. The Act provides for a four week trial, the Complainant worked for seven weeks.

The Complainant was still employed on the date of referral of this complaint so the Respondent requests that this complaint is rejected.

Findings

I note that the Complainant’s contract of employment was flexible. It provided that he could be transferred to different sites.

I note that on 11^th August 2016 he was placed at risk of redundancy.

I note that a consultation period commenced and engagement took place.

I note that three positions were identified and offered to the at risk employees.

I note that the Complainant accepted one of these jobs.

I note that he was working in the same building and on the same floor.

I also note that there was no change to his terms and conditions of employment.

I note that once he had accepted this new post he was advised in writing that he was removed from the ‘at risk’ of redundancy status.

I note that it was confirmed to him that he did not have the option to revert to a redundancy situation.

I note that he worked the new post for seven weeks before he resigned his position.

I find that he accepted a new post with the same terms and conditions.

I find that it was part of his terms and conditions to transfer.

I find that his post was not redundant.

I find that he resigned his position in order to get redundancy payments.

I find that this was not a redundancy situation.

I note that he submitted a complaint for redundancy while he was still employed.

I find that this complaint is misconceived.

Decision:

Section 39 of the Redundancy Payments Act requires that I make a decision in relation to the complaint

For the above stated reasons I have decided that no redundancy arises.

I have decided that this complaint is misconceived.

I have decided that this complaint should fail.

Eugene Hanly

Adjudication Officer

Dated: 30/03/2017