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-00020982-001

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020982-002

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020982-003

03/08/2018

The complainant commenced his employment with the respondent on the 24th 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.

The complainant was never paid for public holidays. When his position was made redundant he was owed 3.3 days holidays and two weeks wages.

No Appearance

CA -00020982 -001

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: 24.01.2014

Termination date: 16.05.2018

Gross weekly pay: 200.00

CA 00020982 -002 Payment of Wages Act, 1991.

Section 5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or  

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment.

Section6 (2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

I am satisfied that the respondent breached Section 5 of the Act in not paying the complainant his wages for two weeks and the 3.3 days holidays due to him. In all of the circumstances I award the complainant €518.70.

CA 00020982 –03 Organisation of Working Time, Act 1997

Section 21(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 27(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,  

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

I am satisfied based on the complainant’s uncontested evidence that the respondent was in breach of Section 21 of the Act. I find that the complaint is well founded and I award the complainant €1,500.00 compensation.