ADJ-00007553

Complainant

Respondent

Parties

Sales Assistant

Retail Store

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-00010162-001

10/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

CA-00010162-002

10/03/2017

The complainant commenced employment in the shop as a General   Sales Assistant in May 2011. The   business was taken over by the present owners in December 2015. The complainant worked an average of 20 -   25 hours per week at the time of the takeover. These hours remained unchanged until   December 2016 when the complainant’s working hours were reduced to between   7.5 and 12 hours per week. The   complainant complained about the reduction in hours without a satisfactory   response. The complainant then served   the respondent with a RP9 Form but was informed that it was not a redundancy   situation. The complainant terminated   her employment on 4 February 2016.

The complainant was requested by the respondent to remain   in employment on the same terms and conditions as heretofore when the business   was taken over in December 2015.

The complainant had an established pattern of working   hours at that time.

The complainant’s hours were cut significantly and without   warning in December 2016. The   complainant received no satisfactory explanation in this regard.

Having sought advice the complainant served Form RP9 on   the respondent as her hours had been reduced by more than 50%. The respondent refused to complete the   form.

The refusal to complete the form has denied the   complainant the right to a Redundancy lump sum payment.

The complainant had a variable hours’ contract and the   respondent had a contractual right to reduce her hours.

Hours were reduced   across the board.

The complainant had advised that she was unavailable for   work on certain evenings.

There was no redundancy situation and when the respondent   received the RP9 Form the complainant was informed in writing to that effect.

The business in question, a retail grocery shop, was the   subject of a takeover by the present owners in December 2015 and it is clear   that the complainant’s employment transferred and was covered by the TUPE   Regulations. The complainant does not   appear to have had a written contract from the previous employer. The present employer, the respondent,   furnished the complainant with a written Statement of Employment in December   2016 but the content was disputed by the complainant. I note, for instance, a start date of 1   December 2015 rather than the date of commencement of the complainant’s   original employment. In the section   entitled Hours of Work it   states:

The company will   provide you with working hours each week, Monday to Sunday. However these hours, days, start and finish   times will vary in accordance with the weekly roster which runs from 7.00 am   to 9.00 pm.

The complainant for her part provided records of hours   worked for 2016 which showed that her weekly hours were normally at least 20   hours until December. Her evidence was   that there was a similar pattern with the previous employer. During 2016 other issues had arisen between   the parties including disputes about the signing of forms for Social Welfare   purposes and a reduction in pay.

The complaint in front of me is specifically under the   Redundancy Payments Act, 1967. Section   11(2) of that Act (as amended) states:

Where –

(a)      for   any week a employees remuneration is less than one-half of his normal weekly   remuneration or his hours of work are reduced to less than one-half of his   normal weekly hours,

(b)      the   reduction in remuneration or hours of workis caused by a diminution either in the work provided for the   employee by his employer or in other kind of work which under his contract   the employee is employed to do,

(c)       it   is reasonable in the circumstances for the employer to believe that the   diminution in work will not be permanent and he gives notice to that effect to   the employee prior to the reduction in remuneration or hours of work,

the employee shall,   for the purposes of this Part, be taken to be kept on short time for that   week.

In order to become entitled to claim a redundancy lump sum   on foot of a period of short-time working, that period must be at least four   consecutive weeks or a broken series of six weeks where all six fall within a   thirteen week period. The respondent   had not given notice to the complainant of being put on short-time working. The complainant served an RP9 Form on the   respondent on 4 February 2016 after being rostered for a maximum of 8 hours   in each of the four weeks previous to that date. By letter dated 6 February 2016 the   respondent replied and in that letter stated:

“ The company will   not be in a position to make a redundancy payment as there is no redundancy   situation, as previously advised in December 2016. I would stress that your job is not at   risk, there is no redundancy situation at hand or in the foreseeable future.”

The letter goes on to state that the complainant is not on   short-time. The complainant wrote again to the   respondent on 8 February 2016 stating inter alia that there was a failure to   comply with any of the criteria of the RP9 Form and that she would expect   that all monies due to her would be calculated and ready for collection by   the complainant by 17 February 2016 along with all relevant paperwork, e.g.   her P45 Form. The respondent again   responded by stating that as the complainant was never placed on short-time   or lay-off there was no scope for redundancy.   There followed a further exchange of letters between the parties with   both sides restating their respective positions. It should be noted that the complainant had   not attended work since 5 February 2016.   On 24 February 2016 the respondent wrote to the complainant stating   that she was still an employee of the Company and requesting that she attend   work on 2 March 2016 as failure to do so could be deemed unauthorised absence   and might lead to disciplinary action.   This appears to be the final piece of correspondence between the   parties.

Section 7(2) of the Redundancy Payments Act, 1967, as   amended, states

For the purposes of   subsection (1), an employee who is dismissed shall be taken to be dismissed   by reason of redundancy if for one or more reasons not related to the   employee concerned the dismissal is attributable wholly or mainly to –

(a)      the   fact that his employer has ceased, or intends to cease, to carry on the   business for the purposes of which the employee was employed by him, or has   ceased or intends to cease, to carry on that business in the place where   the employee was so employed, or

(b)      the   fact that the requirements of that business for employees to carry out work   of a particular kind in the place where he was so employed have ceased or   diminished or are expected to cease or diminish, or

(c)       the   fact that his employer has decided to carry on the business with fewer or no   employees, whether by requiring the work for which the employee had been   employed (or had been doing before his dismissal) to be done by other   employees or otherwise, or

(d)      the   fact that his employer has decided that the work for which the employee had   been employed (or had been doing before his dismissal) should henceforth be   done in a different manner for which the employee is not qualified or   trained, or

(e)      the   fact that his employer has decided that the work for which the employee had   been employed (or had been doing before his dismissal) should henceforth be   done by a person who is also capable of doing other work for which the   employee is not sufficiently qualified or trained.

As noted above there were a number of matters of   contention between the parties in the months leading up to the termination of   employment of the complainant. I have   to investigate this complaint, however, within the criteria of the Redundancy   Payments Acts, 1967 – 2014, as set out above.   It would seem that the decision to reduce the complainant’s hours was   part of a sequence of issues that had arisen between the parties, a number of   which were the subject of a formal grievance lodged by the complainant.   The respondent had specifically maintained   since 6 December 2016 that there was not a redundancy situation in the   company and that the complainant was not on short-time working.

The actions of the   employer obviously impacted negatively on the complainant and I understand   that they are the subject of complaints under different legislation. With regard to this specific complaint, I   find that the criteria for redundancy as set out in Section 7(2) of the Act   did not exist. As regards the RP9 Form   I note that this was served on the respondent on 4 February 2016. I find that the respondent responded in   writing within seven days contesting the liability to make a redundancy payment   as required by Section 13(2) of the Act.   The complainant did not attend work after that date but on 8 February   2016 requested her redundancy payment and P45 Form.   Section 13(3) of the Act states:

If, in a case where   an employee gives notice of intention to claim and the employer gives a   counter notice, the employee continues or has continued, during the next four   weeks after the date of service of the intention to claim, to be employed by   the same employer, and he is or has been laid off or kept on short-time for   each of those weeks, it shall be conclusively presumed that the condition   specified in subsection (1) was not fulfilled.

The complainant did not attend work after serving the RP9   Form.

I find therefore, having regard to all the circumstances,   that a redundancy situation did not exist at the time of the termination of   the respondent’s employment and request for a redundancy payment.

Complaint No.   CA-00010162-001:

For the reasons stated above I find this complaint not to   be well founded and accordingly the complaint fails.

Complaint No.   CA-00010162-002:

This complaint appears to be a duplicate of the previous   complaint. I therefore find it to be   not well founded and accordingly the complaint fails.