Complainant

Respondent

Anonymised Parties

An Employee

A Restaurant

Representatives

Eoghan Ryan Dublin 12 & 6W CIS

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-00020832-003

27/07/2018

The complainant commenced his employment with the respondent on the 14th January, 2014. In or around January,2017 a notice was posted up on the wall, that the restaurant was up for sale. Nothing happened for around 18 months. On the 16th May, 2018 the complainant received a phone call to say that the business was closing down and he was not to turn up for work. The owner said that he had some part time work for him in a different restaurant with a different company. The complainant refused the offer. He was not paid his redundancy. He gave the respondent a RP77 form but the respondent told him that he wasn’t getting any money because he turned down the offer of alternative employment.

No Appearance.

The Complainant’s position with the respondent ceased by reason of redundancy. Section 7(1) of the Redundancy Payments Acts 1967-2015 (herein, the Acts) provides:

“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “

Section 7(2)(a) of the Acts further provides that:

“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to

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

Section 15(2) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment:

“An employee who has received the notice required by section 17 shall not be entitled to redundancy payment if in the period of two weeks ending on the date of dismissal

a)           His employer has made him in writing an offer to renew the employee’s contract of    employment or 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 employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before,

c)            The offer constituting an offer of suitable employment in relation to the employee, and

d)           The renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and

e)            He has unreasonably refused the offer”

The law has been clearly set out in Employment Law, Second Edition at [19.123], where it states:

. . . the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account. In Executors of Everest v Cox it was found that:

The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.

The English EAT case of Hudson v George Harrison ltd shows that the arbiter of fact, before making a decision on the reasonableness of an employee’s decision to refuse to take up an alternative position can look at the employee’s personal circumstances. Before quoting the above-mentioned quotation from Executors of Everest, the EAT stated that, “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances”

I find that the alternative position offered to the Complainant was not a viable alternative on an objective basis. The alternative position had different ( shorter) working hours, less pay and was with a different company in a different location. These changes clearly represent a fundamental change in the terms and conditions of the Complainant’s employment.

I all of the circumstances I find that the complainant is entitled to Redundancy.

Commencement date: 14.01.2014

Termination date: 16.05.2018

Gross weekly pay: 368.00