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-00012967-001

04/08/2017

The complainant is seeking his entitlement to a redundancy lump sum payment. The respondent has not engaged.

The complainant claims that he commenced employment as a retail assistant with the respondent on 2 January 2001 and worked there for 16 years without any break in service until his last day of work on 7 February 2017. The complainant claims that the retailer changed hands a number of times up to December 2016 when the respondent took over responsibility for the business and its employees. The complainant claims that ever since the new owner came in he has been trying to get rid of him. The complainant claims that the owner cut his hours and put him on the least favourable work shifts.

The complainant claims that he did not get a contract of employment and there was always trouble getting paid and when he did get paid he seldom got his payslip. He did furnish in evidence a payslip from the respondent as well as historic payslips from past employers. The complainant claims that he did not get a P45 or a P60. The complainant claims that he usually was paid €212.50 gross per week for 17 to 21 hours per week.

The complainant claims that he believes that the owner wanted him “gone from the start”. He claims that the owner tried to force him out of his job, and then told him his job was gone. He said that he believed that the owner is ageist and that is why the owner wanted him gone. The complainant claims that he was not given any notice on the termination of his employment.

It was the complainant’s direct evidence that he has many friends still employed with the retailer and therefore knows first-hand that the respondent is constantly looking to hire another employee(s) to do the job he was doing. The complainant said that he knows the owner is finding it hard to find someone to work for him.

The complainant said he had no choice but to take a case to the Workplace Relations Commission as there was no use trying to pursue this amicably with the respondent.

The respondent was not present at the hearing and did not send in any submissions.

I am satisfied that all parties were put on notice of the hearing several weeks ahead of the hearing date. I am satisfied the respondent did not attend nor was in contact with the Workplace Relations Commission to explain his nonattendance.

Based on the foregoing I am completely satisfied that there was no reason before me to postpone the Hearing and not to continue into my investigation of this case.

The complainant gave uncontroverted evidence that his employment was terminated on 7 February 2017. However, he said that he is aware that his position remains open and that the respondent is actively trying to have it filled. He said, that the owner wanted him gone and he claims that the owner is ageist and did everything to force him out including making him work shifts on days that did not suit him.

Section 7 of the Redundancy Payment Act 1967, as amended, reads,

“7.(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of F18 [ four years ] ending on that date.

(2) 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 henceforward be done in a different manner for which the employee is not sufficiently 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,]

[(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977 ,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.]” (my emphasis added)

Section 7(2A) as highlighted above is clear as to the when an employee is dismissed but not dismissed by reason of redundancy. It is also clear from the complainant’s own direct evidence that he was let go and everyone else employed there was kept on. It is also his evidence that he knows that the respondent has continued to look for a replacement or replacements for the complainant since he has left his employment.

From the complainant’s uncontroverted evidence it would appear that he was treated unfairly, particularly since he has worked there for 16 years. However, this is not a case of unfair dismissal. This is a case under the redundancy legislation and Section 7(2A) of the Acts is sufficiently clear to determine when a dismissal shall not be considered as a dismissal by reason of redundancy and this has been supported by case law. The key question that I must address is whether the job and not the individual employee was made redundant as mentioned in McGeehan v Park Developments UD 950/2008.

The complainant’s own evidence is candid and clear but it has compromised his own case. I am satisfied that he was let go or indeed forced out from his job, but that his position still remains open and is ready to be filled. The situation here before me for consideration fits squarely with the exemption set out in Section 7(2A)(c) above namely, “an employee who is dismissed shall be taken not to be dismissed by reason of redundancy …. if the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State.”

Accordingly, I am satisfied that I cannot accept that the complainant was dismissed by his employer by reason of redundancy.

As set out above, I find that the circumstances in relation to the termination of the complainant’s employment did not constitute a redundancy situation and that consequently the claim for a Redundancy payment fails.

Redundancy Payments Acts - respondent no show – not entitled to a statutory redundancy.