Complainant

Respondent

Anonymised Parties

A Barber

A Barber Shop

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-00022866-001

25/10/2018

The Complainant worked for the Respondent Company from 23rd January 2009 to 1st September 2018. He asserted that he did not receive his entitlements under the Redundancy Payments Act, 1967.

The Complainant submits that he worked for the Respondent for just over 9.5 years starting in January 2009. The Complainant submits that in March 2018 there was a problem with the building the business was located in and the Respondent engaged an engineer to inspect the matter. The engineer deemed the premises unfit to work in. Moreover, the Complainant submits that the Respondent’s brother got ill suddenly abroad, and the Respondent travelled there. The Complainant claims that while the Respondent was abroad and until the building was fit to work in again, he was moved from his normal premises to the Respondent’s other business a few doors up. The Complainant argues that everything started to change then, and he was put on three days a week. He claims that as the Respondent’s brother passed away he felt like he was being pushed out the door and by this stage it was clear that the barber shop would not be opening again.

The Complainant submits that he went on holidays in August 2018 and when he came back he was told that he would have to go on two days a week. The Complainant claims that he told the Respondent that two days a week was no good to him as he was a married man with kids and he asked the Respondent to give him more days or let him go. The Complainant submits that the Respondent agreed to let him go as work wasn’t there and he left on good terms.

The Complainant says that the following week he asked in a text message for his P45 and a letter stating that the Respondent let him go, which the Respondent agreed to and told the Complainant that she would have it on Friday.

The Complainant submits that subsequently he received a text message saying that the Respondent has a letter with his resignation and would like him to come in and sign it. The Complainant claims that he did not resign and he would not sign it. The Complainant feels that this has hurt him and his family. He says that he finds it hard to believe that he had been working for the Respondent for so long and she would act like that.

The Respondent submits that she operated a unisex hair salon and a hairdressing salon for her female clientele in close proximity to each other.

The Respondent submits that in March 2018, she transferred the unisex hair salon to the hairdressing salon as the premises had been allowed to fall into disrepair by the landlord and was deemed to constitute an unsafe working environment. Indeed, the landlord allowed the Respondent to surrender her lease. The Respondent continues to operate her hairdressing and barber shop business in the other premises.

The Respondent submits that the Complainant commenced employment with the Respondent in or around January 2009. He was employed as a barber and his contract of employment states that his hours of work are a minimum of fifteen and maximum forty hours per week.

The Respondent submits that the Complainant resigned from his employment with the Respondent on 31st August 2018. The Complainant advised the Respondent that he was resigning as he had been offered a four-day week with competing barber shop located a short distance of the Respondent’s hairdressing salon. The Complainant also advised the Respondent that he would sign in for the other day. When handing in his notice the Complainant also advised the Respondent that he wanted to finish up the following day the 1st September 2018. The Respondent agreed to this and the Complainant employment terminated on 1st September 2018 due to his resignation. The Respondent argues that it did not make the Complainant redundant and consequently he is not entitled to a redundancy payment.

The Respondent submits that on 1st March 2018 the Complainant advised the Respondent that he could not work in the barber shop as the premises was in bad condition. The Respondent arranged an architect to inspect the premises. The inspection disclosed that the building was not fit for purpose and that it was not safe to have staff working there. For health and safety reasons by 10th March 2018 the Respondent had moved the barber shop business to the other premises. Ultimately, due to the structural condition of the barber shop premises the landlord agreed to release the Respondent from her obligations under the lease.

The Respondent further submits that she informed that Complainant that there would need for a reduction in his working hours due to a downturn in business. It was agreed between the parties that the Complainant’s hours would be reduced from 30 hours to 22.5 hours per week which said hours would be worked over three days a week as opposed to five days a week. This arrangement commenced on 5th June 2018. As a result, the Complainant’s gross pay was reduced from €318.25 per week to €256.91 per week. The Complainant advised the Respondent that he had no difficulty working 3 days a week as it didn’t affect his family income supplement. He further advised that the owner of a competing barber located near the Respondent’s premises would give him work. Furthermore, the Complainant advised the Respondent that another barber in locality were looking to give him work also. The Respondent understands that the Compliant worked there for a period of time. The Respondent submits that the Complainant commenced working for the competing barber in or around June 2018. The Respondent argues that the Complainant resigned his employment with the Respondent to work at the competing barber.

The Respondent submits that prior to the Complainant taking his annual leave at the end of August 2018, the Respondent requested that he reduce his working hours to 15 hours a week worked over 2 days. The Respondent claims that it made it clear that this arrangement would only be temporary and last for two to three weeks after he returned from his holidays. The Complainant confirmed that he had no difficulty with what was proposed as the competing barber would give him any hours he wanted. The Complainant went on holidays and when he returned on his first day back he handed in his notice as outlined above.

The Respondent submits that the Complainant’s employment terminated on 1st September 2018. The Complainant, to the best of the Respondent’s knowledge has been working on full time basis with the competing barber since he left his employment.

The Respondent submits that there is a shortage of barbers within the industry and since the Complainant resigned his position with the Respondent she has been unable to recruit a barber to replace the Complainant. Consequently, her business has been financially affected and she has not been able to provide a full service to her make clientele. Indeed, the Respondent has referred clients to the Complainant in his new workplace.

Legal position

The Respondent argues that it did not make the Complainant redundant. Rather, the Complainant resigned his position to work with a competing barber shop.

The Respondent submits that while the Complainant’s hours were reduced form 30 hours to 22,5 hours per week in or around 5th June 2018 resulting in a reduction of his gross pay from €318.25 per week to €256.91 per week this is not deemed to be short time by law.

The Respondent submits that pursuant to the Redundancy Payments Act a right to a redundancy payment only arises where an employee is kept on short term for a period of four or more consecutive weeks or for a period of 6 or more weeks within a period of 13 consecutive weeks. Furthermore, an employee is deemed to be on short time where his or her hours of work or remuneration are less than half of their normal weekly amount by reason of diminution in the work provided for the employee by the employer. The Respondent argues that while the Complainant’s hours and remuneration were reduced they were not reduced to less than half of the normal weekly amount.

The Respondent submits that, while it was agreed that the Compliant upon his return from annual summer holidays at the end of August would work 15 hours per week over 2 days for 2 to 3 weeks, this arrangement never occurred as the Complainant resigned his positions with the Respondent.

The Complainant asserts that due to the reduced hours of work he is entitled to a redundancy payment in accordance with the Redundancy Payments Act. In that regard, the Complainant sent form RP77 to the Respondent on 27th September 2018. The Respondent denies the claim and asserts that the Complainant resigned his position. The Respondent's position is that the Redundancy Payment Act can only apply where a genuine redundancy exists and that at the time of the Complainant's resignation no such genuine redundancy existed. The Respondent argued that at no stage was the Complainant dismissed or made redundant. The Respondent outlined its position to the Complainant in the letter to the Complainant dated 12th October 2018.

The Law

The Redundancy Payments Acts provide as follows:

7. General right to redundancy payment

(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

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

[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if—

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by—

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.]

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

11. Lay-off and short-time

(2) Where—

(a) for any week an employee's remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do,

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

(3) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's reduced hours of work for any week are less than one-half of his normal weekly hours, he shall for the purposes of this Part be taken to be kept on short-time for that week.

12. Right to redundancy payment by reason of lay-off or short-time

(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

There was no dispute that the Complainant’s hours of work and salary were reduced on 5th June 2018 to 22,5 hours per week and €256.91 per week respectively.

There was no disagreement that the Complainant’s salary up to 5th June 2018 was €318.25 per week.

In respect of the hours of work, the Complainant’s contract states that his hours of work would be between 15 and 40 hours per week. It was in dispute whether the Complainant ordinarily worked 30 or 32 hours. The Complainant argued that he worked 32 hours a week, the Respondent on the other hand claimed that the Complainant worked 30 hours a week. In that regard that Respondent exhibited copies of timesheets signed by the Complainant and by the Respondent showing that he worked 28.5 hours weekly in the period from 21st June 2016 to 5th June 2018.

The parties were in an agreement that there was a proposal at some stage to reduce the Complainant’s hours further to 15 hours a week for a number of weeks. This, however, never materialised as the Complainant’s employment was terminated.

The Act is clear that in order to be entitled to a redundancy payment an employee must be on short-term “for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks”.

The Act further stipulates that an employee is deemed to be kept on ‘short-time’ if for any week an employee's remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours.

The Complainant’s hours of work were reduced to 22.5 hours a week and his salary was reduced to €256.91 per week. Therefore, it does not meet the requirements of the Act.

Accordingly, no genuine redundancy situation existed. Consequently, the Complainant is not entitled to a redundancy payment under the Act.

On the basis of the evidence and my findings above and in accordance with Section 39 of the Act I declare this complaint not well founded.

Redundancy- no genuine redundancy