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-00013173-001

17/08/2017

The complainant was employed by the Respondent as a waitress since April 2008. The complainant was paid €9.37 per hour and worked 10 hours per week on average. The complainant contends that her employment terminated by reason of redundancy on 2nd January 2017 and is seeking the payment of her redundancy entitlements in accordance with the provisions of the legislation.

The complainant contends that she was employed by the respondent working approximately 8-10 hours per week at a Golf club where the respondent provided contract catering services. The complainant’s position is that the respondent ceased its operations at the Golf Club on 31st December 2016 and that the complainant was placed on temporary lay-off with effect from 2nd January 2017. The complainant stated that she sought a meeting with the Respondent which was held on 15th February 2017 and she sought her redundancy entitlements. The complainant stated that she was offered a position on 19th February 2017 and sought details in writing relating to the applicable terms and conditions of the new position.

The complainant stated that the respondent clarified the terms and conditions applicable to the new position by letter dated 29th March 2017. The complainant did not accept the offer of the new position after receiving the clarification from the respondent as she believed the offer was not reasonable and did not suit her personal arrangements. She stated that there was a significant increase in distance to the new work location which would increase travel time and expenses and the specifics of the role were also different to the original role.

The complainant’s representative submitted an RP9 to the respondent on 30th March 2017 seeking that the complainant be paid her redundancy entitlements in circumstances where she had been on temporary layoff from 2nd January 2017 and that the offer of alternative employment as clarified by letter dated 29th March 2017 was not suitable.

The complainant does not accept that a transfer of undertakings took place as there was no replacement catering contractors in place in the Golf Club for a number of weeks after the complainant was placed on temporary layoff. The complainant’s representative cited Mary Cannon v Noonan Cleaning Company Ltd and V C.P.S. Cleaning Services Limited [1998] 9 E.L.R. 153 in support of its position.

The respondent rejects the claim. The respondents position is that the complainant would retain her position at the Golf Club as soon as a new catering contractor was appointed. The respondent contends that the complainant’s role would be retained in line with the transfer of undertakings regulations.

The respondent cited the cases of Ayse Suzen V Zehnacker Gebaudereminguang GmbH Krankenhausservice (C-13/95), Spijkers V Gebroeders Benedik Abatttoir (1986) (C-24/85) and Carlito Abler and Others V Sodexho MM Catering Gesellschaft mbH (c-340/01) in support of its position.

Notwithstanding its position in relation to the transfer issue, the respondent stated that the complainant was on temporary layoff and was offered suitable alternative employment on 19th February 2017. The terms and conditions applicable to the role were clarified to the complainant by letter dated 29th March 2017. The respondent does not accept that a redundancy situation exists as it offered what it considered to be suitable alternative employment to the complainant and she did not accept the offer.

As the new catering contractor at the Golf Club did not commence until 8th February 2017, I find that no transfer took place in line with Statutory Instrument 131/2003- European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.

In relation to the specifics of the redundancy complaint I find as follows:

The complainant was employed from April 2008 and was placed on temporary layoff on 2nd January 2017 after the respondent ceased its catering operations at the location where the complainant was employed.

The complainant sought to meet her employer to discuss her redundancy entitlements and a meeting took place on 15th February 2017.

The respondent subsequently offered the complainant a role on 19th February 2017 in its new Café which it had recently opened. The complainant sought clarification on the terms and conditions of the new role which she requested by letter dated 2nd March 2017. The terms and conditions of the role were furnished to the complainant by letter dated 29th March 2017. The complainant did not accept the offer as she believed that it was not a suitable alternative.

The complainant stated that the distance from her home to her previous place of employment was 8km whereas the distance to the new location was 20km and would significantly increase her travel time to and from work which would also result in additional transport costs. In addition, the complainant stated that the previous role involved waitressing at functions in a Golf Club where the new role was waitressing in a café. The complainant also stated that the new role was unsuitable as the shifts on offer would not suit her personal circumstances and availability.

The Law:

Section 7 of the Redundancy Payments Acts, 1967 at relevant parts states as follows:

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 four years ending on that date.

7(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 concernedthe 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

7(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

In the instant case, the complainant was on layoff from 2nd January 2017 and did not return to work. She was not offered any alternative employment until 19th February 2017. I find that the complainant sought her redundancy entitlement in line with Section 7 of the Redundancy Payments Act, 1967 in circumstances where the respondent had ceased to carry out its business at the place where the complainant worked and the complainant had been on layoff for a period of almost seven weeks.

I accept the complainant’s contention that when the new position was offered to her she felt it was unsuitable for the reasons stated.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the complaint is well founded. The complainant is entitled to a statutory redundancy payment as follows:

Date of commencement of employment: 2nd April 2008

Date of cessation of employment: 2nd January 2017

Rate of pay: €9.37 per hour

Average hours worked per week: 10

This decision is based on the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.