Complainant

Respondent

Anonymised Parties

Sales Assistant

Supermarket

Representatives

Lyndsey Roice, Lyndsey Roice Accountants

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-00011180-001

06/05/2017

The complainant was employed as a sales assistant in a supermarket commencing in September 2003.   The complainant worked 20 hours per week and her gross weekly pay was €189.90. The claim arises from the closure of the shop in January 2017 following the appointment of receivers to the business.

The complainant was laid off following the appointment of receivers and the closure of the supermarket premises in January 2017.

Prior to that there had been two previous periods of temporary lay-off.

In April 2017 the complainant served a claim for redundancy on the respondent but this was refused as the respondent claimed that the complainant had been offered alternative employment.

The complainant rejected this offer on the basis that it was with a separate employer and there was a threat of receivership in relation to that employer also.

The closure of the shop was the result of a court order.

An offer of alternative employment was made to the complainant.

The business in which the complainant was offered employment was never the subject of receivership although the premises in which it operated was part of the receivership affecting the supermarket.

The complainant therefore is not entitled to a redundancy payment.

It must first be noted that while the respondent had a representative at the hearing there was no attendance by the owners / directors of the respondent.

There is a background to these events which include previous lay-offs, occupation of the premises and finally a court order barring the directors from entering the premises. On 14 January 2017 the complainant received a letter addressed to all staff stating that it was necessary to temporarily lay them off work and expressing the hope that this would be just a short term arrangement. Forms for the Social Welfare office were attached and the letter was signed by a company Director. The premises closed on that day and has remained closed.

The complainant was advised that there was a court case in March and then in early April was asked to attend what she believed was a staff meeting. In reality the only persons present at the meeting were two owners and herself. The complainant was advised that there was a job for her in another supermarket in another village some miles distant. There were no specifics as regard this job at that time. This operation was run by a brother of one of the owners but is a separate entity to the supermarket that closed. The complainant stated that it was her understanding that this was a different company. The owners also spoke of their hope of re-opening their supermarket. In a later conversation with one of the directors the complainant was told that the job mentioned was for 13 weeks’ duration.  

The complainant was unhappy with the offer as she was being asked to work for a different employer with no guarantee of permanent employment. The complainant also believed that the other business was also under threat of receivership. She therefore filled in a RP77 Form requesting that she be made redundant and be paid accordingly and sent this to the respondent on 20 April 2017.     The complainant received a reply which stated that the respondent “is unable to process your request for redundancy at the moment as we made an offer of secondment employment to you.” The letter went on to say that the employment was for the same duties and hours as she had worked plus a mileage allowance, that it was secured for a minimum of 13 weeks and that she would be paid through the respondent company. The RP77 Form was returned to the complainant. The complainant responded stating her objections to the offer and her intention to refer her complaint to the WRC. In June 2017 the respondent forwarded the complainant’s P45 Form as requested and in the cover letter stated: “I am sorry that you were unable to take up the employment that we had offered you in our other family business but I am glad that you have succeeded in securing alternative employment.”

The respondent’s representative at the hearing stated that the business run by the brother of one of the owners in which the offer of employment was made was not itself ever the subject of receivership and was not a limited company but that the premises in which it operated was part of the receivership process.

Section 15 of the Redundancy Payments Act, 1967, states:

(1)    an employee shall not be entitled to a redundancy payment if

(a)    his employer has offered to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b)    the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c)     the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d)    he has unreasonably refused the offer.

As outlined above the complainant refused an offer of employment on the grounds that she was being asked to work for a different employer than the respondent, the offer only guaranteed 13 weeks’ employment and she believed that the alternative business was under threat of receivership. The letter from the respondent in April referenced “secondment employment”. This can only mean that the employment was being seconded to another employer albeit paid through the respondent’s payroll. This view is confirmed by the final letter that references “our other family business.” The new offer was not for a contract of indefinite duration which was what the complainant had until then. The complainant’s fear that the other business was either facing receivership or already in it was a real and genuinely held belief on her part. In all these circumstances the offer of alternative employment in my view does not meet with the requirements of Section 15.   More particularly I do not accept that the refusal by the complainant to accept that offer was unreasonable having regard to all the circumstances. The complainant is therefore entitled to payment under the Redundancy Payments Act.

Complaint No. CA-00011180-001:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012. For the reasons outlined above and based on the evidence presented to me I find this complaint to be well founded. The complainant is therefore entitled to a redundancy payment based on the following criteria:

Date of Commencement:       16 April 2003

Date of Termination:             14 January 2017

Gross Weekly Pay:                 €189.90

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.