ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00014225

Parties:

Complaint(s):

Date of Adjudication Hearing: 28/09/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant, a Van Salesman sought a redundancy payment from his employer, a Food Distributor.

Summary of Complainant’s Case:

The Complainant had been employed by the Respondent since the 28 January 2013. His rate of pay was €550 gross per week and he had been working with the Respondent continuously for a period of three years 10 months.

He maintained that his job was terminated on 17 November 2017. The Complainant submitted that on 16 November 2017 when he attended for work he was met by a manager and advised that the business was closing, the manager was very sorry, and that the manager would do his best to get the Complainant another job. The Complainant maintained that suppliers were on the premises taking back stock. He understood that his job was being terminated straightaway, and by the following Monday he had left his employment.

The Complainant maintained that he did not receive any redundancy payment and submitted a RP77 to the Respondent on 17 January 2018 seeking his statutory redundancy entitlement, but he received no response from the Respondent. He was therefore seeking his redundancy payment

Summary of Respondent’s Case:

The Respondent denied that the Complainant was made redundant on 16 November 2017. The Respondent maintained that the Complainant was met by a manager on 16 November 2017 when the Complainant had arrived at work, where the manager advised the Complainant that the business was in difficulty; and that suppliers were taking back their stock. The Respondent submitted that when he informed the Complainant of the situation the Complainant had tears in his eyes and as there had been a long-term relationship over the years between the Complainant the manager, the manager would have advised the Complainant that he would do what it could for him. The manager maintained that he did not tell the Complainant at that stage his job was being made redundant, nor did he put the Complainant formally on notice of a redundancy at that time.

The Respondent maintained that as the business was in difficulty he was seeking the advice of a solicitor on how to progress matters, and redundancy decisions had not been made at that time.

The Respondent submitted that the days leading up to 16 November 2017 the business had been experiencing difficulties, including a robbery, and where suppliers had started to take back their stock. In light of the trading difficulties the Respondent had decided to notify it suppliers and customers that it was no longer trading, and the Respondent was in the process of advising it clients on 16 and 17 November 2017. The Respondent maintained that it had been told by a supplier that arrangements may have been put in place by another employee to facilitate some of the suppliers, and where some of the suppliers had been contacted and advised by this employee that a new company was to be set up and that company would continue with the deliveries.

The Respondent advised that it had three employees and a manager, and initially its focus was on winding down the business before any employee would be notified of redundancy. The Respondent maintained that the Complainant and another employee left before they had been notified of any redundancy, and one employee remained. Some weeks later this employee was subsequently issued with notification of their redundancy notification and would have received a redundancy payment in due course when the business stopped trading in January 2018. The Respondent confirmed that business was in voluntary liquidation at the time of the hearing.

The Respondent maintained that on 16 November 2017, after dealing with suppliers that morning, he went to speak to the Complainant but was advised that the Complainant had left with a company van to make deliveries. The Respondent maintained that there were no deliveries to be made and that he had never instructed the Complainant to leave the premises on that day. He also maintained that a similar situation took place on Monday, 19 November 2017, where after the Complainant had arrived to work that day, and when the manager went looking for him the manager was informed the Complainant had again left the premises in the company van to make deliveries.

The Respondent maintained that the Complainant had no authority to make any deliveries as business had ceased trading, and that the Respondent had to eventually retrieve the company van from the Complainant on the following Wednesday, where it was also noted that the Complainant had used the company credit card to purchase €350 on diesel. The Respondent therefore maintained that the Complainant had commenced working with another employer and had left his employment without notice, and before any redundancy notice had been provided to him.

In cross-examination the Complainant acknowledged that on the Friday and Monday he would have been on trial with new supplier, but that arrangements had also been made between the Complainant and Respondent that the Complainant would collect cash for any outstanding deliveries from the Respondent’s customers. The Respondent denied that he had provided this instruction, or that he had authorised the Complainant to use the van for other deliveries, although the Respondent acknowledged that its manager would have received some cash from the Complainant for payments from his customers.

The Respondent submitted that the Complainant and another employee had started to work with another supplier by 19 November 2017 and as such the Respondent deemed the Complainant had left his employment prior to any redundancy notice, and therefore the Complainant was not entitled to his redundancy payment.

Findings and Conclusions:

Section 17(1) of the Redundancy Payment Act 1967, as amended (the Act) , requires an employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeksservice with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal.

Having heard the evidence I am satisfied that the Respondent’s business ceased trading with its customers and suppliers in or around 16th November 2017, and that the Complainant would have been advised that the business was in difficulty in or around that date. Based on the evidence provided I am also satisfied that the Respondent at this time was reviewing the situation and had not made any decisions with regard to redundancies of its staff, albeit it may well have been evident that such a decision was to be made.

I therefore find the Respondent had not issued any notification of redundancy in writing as is required under the Act. Accordingly, the Complainant cannot rely on the fact that he was notified that he was being made redundant on the basis he was verbally advised on 16th November 2017 that the business was in difficulty. The evidence provided supports that the Respondent was still considering the implications of the situation and had not decided what redundancies were to apply as it was reviewing what actions were required to wind down the business.

Based on the acknowledgement of the Complainant, I am satisfied that the Complainant used the company van on the 16th, 17th, and 20th November 2017 to make deliveries for another employer, and where the Complainant confirmed that he was on a trial over those days with another employer. The Complainant acknowledged that as he had a family and needed money he took employment with a new employer after the trial. He also acknowledged that he had used the van with the new employer, and that he returned the van to the Respondent when requested to on Wednesday 22nd November 2017.

Having considered all the evidence presented I am satisfied that the Respondent did not put any employee on notice of redundancy prior to the Complainant leaving his place of work to take up alternative employment. I find that whilst a redundancy situation may have been imminent, it had not occurred at the time of the departure of the Complainant, and furthermore I find the Complainant when he was in employment with the Respondent had started a trial with another employer, used the Respondent’s van over this period, and had not notified the Respondent of this, nor had he notified the Respondent of his intention to leave his employment.

The evidence also supports that it was not until January 2018, when the Complainant became aware that the employee who remained with the Respondent had qualified for a redundancy payment, and at that time the Complainant decided to seek a redundancy payment for himself, and issued a RP77 at that stage.

I therefore find that the Complainant had left his employment before the Respondent had issued any notice of redundancy in accordance with S17 of the Act, and accordingly the Complainant had resigned before he was put on notice of any such redundancy.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 (the Act) requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 7 of the Act provides a general right of an employee, who is dismissed by his employer by reason of redundancy, to be entitled to the payment of a redundancy payment, provided the employee has been employed for the requisite period.

As I have found the Complainant had resigned before the redundancy procedures commenced, and before he was formally put on notice of redundancy, I find that he does not qualify for a statutory redundancy payment as he had not been notified of a redundancy at the time he left his employment. Under such circumstances the Complainant is deemed to have resigned his position, without notice.

Accordingly, the Respondent is not found to be in breach of its obligations under the Act, and consequently the complaint is not upheld.

Dated:   03/10/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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