Complainant

Respondent

Anonymised Parties

An Employee

An Employer

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-00018186-001

27/03/2018

The Complainant in this case describes herself as an employee. The Respondent company is a gym specialising in health and wellbeing.

The Complainant commenced employment with the Respondent on 01/02/2014 – initially she was working 18 hours per week and earning approximately €1,100 per month gross. This working arrangement lasted approximately 2 years. In or around February 2017 the Complainant’s hours were cut from 18 hours per week to 9 hours per week.

There was no employment contract issued and business between the Complainant and Respondent was conducted verbally.

The complainant made a short verbal submission at the hearing and outlined her work history with the Respondent.

When she commenced employment, she was working 18 hours per week with a need to be flexible, business was good and in the words of the Complainant there were “lots of appointments”.

In February 2017 the Complainant’s hours were reduced to 9 hours per week – all day on a Thursday plus any extra hours that may be required from time to time.

The Complainant was called to a meeting on 23rd November 2017 and was given notice by the Respondent that she would be finished on 7th December 2017.This letter also contained €250 in cash – when the Complainant enquired what this sum was for she was informed it was a gratuity.

When the Complainant enquired about working her notice period she was informed that it would not be necessary as there were no appointments coming in.

The Complainant experienced some difficulty in obtaining a P45 from the Respondent.

The Respondent feels that no redundancy situation existed, there were hours available to the Complainant but these hours were not to her liking and she was in fact quite inflexible in relation to working hours.

The Respondent, by letter dated 07/12/2017 states the following:

To whom it may concern.

As a result of the nature of our business and the inflexibility of the hours we had to try fill on set days, (name of business inserted) can no longer keep a position open for (complainant’s name inserted) with effect from 7th December 2017.

If you require any further information please do not hesitate to contact the centre on (phone number inserted)

Signed by Respondent Managing Director.

In a second letter signed by the Respondent Managing Director, dated 22nd January 2018 and addressed to the Complainant the following is said:

Dear Ms (Complainant’s name inserted).

Please forward to revenue.

Our meeting on 4th December made it clear that (Respondent company name inserted) was put in an awkward situation due to the inflexibility of hours you requested to work.

It was made clear on 4th that the company was not making the position redundant as requested by the letter you worded and requested the company to sign.

Please find enclosed letter sent to revenue in response to their request, posted on the 5th December.

If you require your P45 the company will accept your letter of resignation.

Hope this clarifies the situation.

Kind regards.

Signed by Respondent Managing Director.

In another letter dated 4th December 2017 and addressed to a person in Social Welfare the Respondent Managing Director states that “We have casual hours for the position, but not aguaranteed fixed amount every week. The position is active and is not being made redundant.

The first mistake made in this case goes back to the commencement of employment – had a statement of the particulars of employment (Terms of Employment (Information) Act 1994, been issued in compliance with legislation it could have contained a clause in relation to the need for flexibility of working hours.

Through custom and practice, in the absence of a contract, the Complainant’s weekly hours are 18 per week. The reduction of hours to 9 hours per week commenced on 1st February 2017, less than one year prior to the termination of her contract.

Legally the situation that existed is a redundancy situation and the Complainant is entitled to her statutory entitlements, this amounts to approximately €2,208 based on dates and earnings stated and agreed at hearing.

The Complainant is entitled to a statutory redundancy payment and I now order the Respondent to make the appropriate payment to the Complainant within 42 days of the date of this decision.

Redundancy.