Complainant

Respondent

Anonymised Parties

A Café Supervisor

A Café

Representatives

None

None

Act

Complaint

Reference No.

Date of Receipt

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

CA-00012623-001

18/07/2017

The complainant’s employment with the respondent ended on the 28^th April 2017 and she claims a redundancy lump sum payment. Her remuneration was €585 per week.

The complainant commenced employment at the café on the 17^th October 2007 and was then employed by a named entity. This café business transferred to the respondent on the 19^th May 2013 and the complainant’s employment continued without a break in service. The complainant continued to work for the respondent and was informed on the 29^th March 2017 that the business would close. She was given four weeks’ notice of the closure of the business. The business closed on the 28^th April 2017.

The complainant raised her redundancy entitlement with the respondent on a number of occasions during the notice period. Towards the end of April, the company director told her that he had obtained legal advice to say that the respondent was not obliged to pay her a redundancy lump sum. He gave the complainant the letter dated the 26^th April 2017. This referred to there being a transfer to a named party, who the complainant said was the landlord or head-tenant of the café premises. The letter suggests that the complainant to contact this party and makes an offer of an alternative role.

In respect of the offer of an alternative role, the complainant said that the job offered was not in the same job line type as her role with the respondent. Her role had been in a café while the offer was for a burger restaurant. The businesses have different business hours, with her role in the respondent starting at 5.30am and finishing at 3.30pm. She then went to her mother to care for her in the evenings. The alternative role would start at 10.30am and finish late into the evening, at around 11pm. The alternative role was a considerable distance from the respondent business and a great distance from her home in an adjoining county. The complainant also commented that the alternative job was only mentioned after she had enquired about her redundancy lump sum and only made two days before the closure of the business.

The complainant outlined that after the 28^th April 2017, the café remained closed and did not re-open. She thought that it was for sale or for lease.

The respondent did not attend the adjudication. On the 26^th April 2017, it gave the complainant a letter that suggested the complainant contact a named party regarding the continuation of the business and made an offer of an alternative role.

The complainant claims an entitlement to a redundancy lump sum payment pursuant to the Redundancy Payments Acts. She reports that the respondent denied that she was so entitled, referring to a continuing business at the café premises and the offer of alternative employment.

The first issue is the length of the complainant’s service. Paragraph 6 of Schedule 3 of the Redundancy Payments Act provides as follows:

“Where a trade or business or an undertaking (whether or not it be an undertaking established by or under an Act of the Oireachtas), or part of a trade or business or of such an undertaking, was or is transferred from one person to another, the period of employment of an employee in the trade, business or undertaking (or in the part of the trade, business or undertaking) at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment. “

Applying this provision to the complainant’s uncontested evidence, her employment for the purposes of this complaint commenced on the 17^th October 2007 and was continuous until its end on the 28^th April 2017.

It is further clear that the respondent business closed on the 28^th April 2017 and that there was no continuing business or transfer on or after that date. I find that a redundancy situation arose within the ambit of section 7(1)(a) of the Redundancy Payments Act.

Sections 8 and 15 of the Redundancy Payments Act address the situation where an employer makes an offer of alternative employment to the employee. The question is whether the complainant was unreasonable in turning down the offer. In considering the above provisions, and case law such as Heavey v Casey Doors Ltd RP1040/2013, I find that the complainant acted reasonably in not taking up the offer contained in the letter of the 26^th April 2017. I reach this finding for the following reasons. First, the proposed alternative is some 45km away from the complainant’s home and some 30km from the place of the respondent business. Second, it is a very different role, with different working hours. I also note the complainant’s family commitments.

Taking these factors into account, I find that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts.

I determine that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, based on the following information:

Date of commencement of employment: 17^th October 2007

Date of notice of termination of employment: 29^th March 2017

Date of end of employment: 28^th April 2017

Weekly gross pay: €585 per week

CA-00012623-001

I determine that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, based on the following information:

Date of commencement of employment: 17^th October 2007

Date of notice of termination of employment: 29^th March 2017

Date of end of employment: 28^th April 2017

Weekly gross pay: €585 per week

Redundancy Payments Act, Schedule 3

Redundancy Payments Act, sections 7(1)(a), 8 and 15

Heavey v Casey Doors Ltd RP1040/2013