ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012912
Parties:
| Complainant | Respondent |
Anonymised Parties | A Chef & Training Supervisor | A Recruitment Company |
Representatives | Cian Moloney BL instructed by Behan Barry Solicitors | HR Director |
Complaint(s):
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-00017156-001 | 30/01/2018 |
Date of Adjudication Hearing: 16/04/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant, a chef, sought a Redundancy Payment from his former Employers -a contract Catering staff Agency. |
1: Summary of Complainant’s Case:
On the 24th August 2017 the Complainant was informed that his contract placement with a HSE Facility was coming to an end. The Contract had been of some six years duration. The Respondent was not able to offer any alternative work and the Complainant sought Redundancy. |
2: Summary of Respondent’s Case:
The Respondent pointed to Section 15 of the Redundancy Payments Act,1967 and maintained that they had taken every possible step to find an alternative placement for the Complainant. The Complainant had been seeking a long term permanent placement but initially seemed happy to take a temporary position to tide him over. E mails of possible job placements were exhibited in evidence. It was pointed out that a chef was a profession in great demand and a placement would have been easily arranged. The Complainant was actively in the job maker on his own account and in fact, had very quickly secured permanent work outside of any involvement with the Respondent Agency |
3: Findings and Conclusions:
3:1 The Law: Section 15 of the Redundancy Payments Act,1967 applies. Disentitlement to redundancy payment for refusal to accept alternative employment. 15 15.— (1) An employee F33 […] shall not be entitled to a redundancy payment if F33 […]— ( a) his employer has offered to renew that employee’s contract of employment or to 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 his employment would not differ from the corresponding provisions of the contract in force immediately before F34 [the termination of his contract], ( c) the renewal or re-engagement would take effect on or before the date of F34 [the termination of his contract], and ( d) he has unreasonably refused the offer. (2) An employee F33 […] shall not be entitled to a redundancy payment if F33 […]— ( a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to 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 his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before F34 [the termination of his contract], ( c) the offer constitutes an offer of suitable employment in relation to the employee, ( d) the renewal or re-engagement would take effect not later than four weeks after the date of F34 [the termination of his contract], and ( e) he has unreasonably refused the offer. F35 [(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section. ] F36 [(2B) Where— (a) an employee’s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and (b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him. ] F34 [(3) Where a person who is entitled to a weekly payment has unreasonably refused suitable employment offered or approved by the National Manpower Service, that person shall be disqualified from receiving F37 [any further weekly payments].] However, each case must be seen on its own merits and all evidence considered. 3:2 The evidence in this Case pointed pointed to the fact that the Recruitment Agency concerned was late in being notified by the End User party – a HSE Agency -that the placement was over and in fact only became aware of the ending of the contract because of direct communication from the Complainant. In direct evidence supported by copy e mails the Respondent pointed to a number of job offers they had made, albeit initially on a temporary employment basis. They also pointed to their assurances to the Complainant that once it was made clear that the Complainant was seeking a permanent position their efforts to begin the process of securing him such a position began immediately. They were very optimistic that a successful outcome would happen quickly due to the high demand for Chefs -the Complainant’s profession. However, the Complainant through his own efforts had by mid-September secured a suitable position which effectively made efforts by the Respondent superfluous. The evidence, both oral and written, clearly pointed to the fact that the Respondent Agency had very actively engaged with the Complainant in trying to secure an alternative position. In summary therefore, I found that Section 15 (1) (a) applies namely Disentitlement to redundancy payment for refusal to accept alternative employment. 15 15.— (1) An employee F33 […] shall not be entitled to a redundancy payment if F33 […]— ( a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment. Accordingly, I did not feel that the Complainant had a valid claim for a Redundancy Payment from the Respondent. The claim is accordingly dismissed. |
4: Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Act | Complaint/Dispute Reference No. | Summary Decision /Refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00017156-001 | Claim is dismissed. |
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Dated: September 12th 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
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