Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A Restaurant

Representatives

David Geoghegan B.L. instructed by Coonan Cawley Solicitors

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-00030485-001

23/08/2019

The complainant had been employed by the respondent as a Kitchen Porter since February 2nd, 2012. He was paid €200 per week net and worked ‘irregular’ hours. He is one of four former employees of the respondent making a similar complaint.

The complainant was told on April 23rd that his work would be transferring to a new location and told he would be given four to six weeks’ notice of this.

On May 3rd he was told that the restaurant he worked in was closing and that he would be based at a nearby hotel, also owned by the respondent.

He was asked to confirm agreement to the transfer by May 20th.

He was given no information about what his role would be at the new venue and he had some concerns on this front.

He did not sign the agreement to move.

His solicitor wrote to the respondent on May 25th seeking confirmation that his existing contract of employment still applied, and he replied on June 12th that there had been no change.

He then submitted Form RP77 seeking a redundancy payment. He did not believe that there would be a job for him at the new location.

The respondent owns and operates a Hotel (‘the new location’) and formerly operated a separate restaurant (‘the old restaurant) both owned by the same company.

In 2019, the respondent made a commercial decision to stop trading from the old restaurant as it was not profitable. The respondent wished to transfer the business to the new location, which are within 500 metres of each other.  

On 23 April 2019 the respondent met with the complainant and discussed the possibility of the transfer and confirmed that the complainant would be employed in the new premises as the respondent required his services there as a head chef.   The complainant’s wage would have been the same if not increased, and his hours would have been the same.

The respondent said that the new restaurant would serve until 10pm and that he needed the complainant to work for him.

The parties engaged in various written forms of communication both personal and through solicitor’s letters and e-mails.

On 3 May 2019, the respondent’s HR company wrote indicating that the old restaurant would cease trading and that the complainant was required at the new restaurant.

On 16 May 2019, the complainant sent a letter seeking confirmation that he was being made redundant.

The respondent did not reply or confirm this as the complainant was clearly not being made redundant. On 23 May 2019, the complainant’s solicitor wrote a letter to confirm that the complainant (and his co-workers) would take up employment at the new restaurant on the same terms. By letter dated 12 June 2019 the respondent agreed to this.

On 14 June 2019, the complainant’s solicitor wrote again seeking further confirmation. On 5 July 2019, the complainant sent an RP77 form to the respondent, which was not responded to as the complainant had neither been dismissed nor made redundant.

On 23 August 2019, the complaint was received by the WRC. The sole complaint is that the complainant has not received a redundancy payment. The respondent says that the complainant is entitled to the relief sought.

Section 7 of the Redundancy Payments Act 1967 as amended provides that an employee is entitled to a redundancy payment if he has been dismissed by reason of redundancy. Section 7(2) of the Act sets out five grounds that constitute a dismissal by reason of redundancy.

In the context of the within proceedings, it would seem that the only two grounds which could apply are section 7(2)(a) and section 7(2)(b).

Section 7(2)(a) provides that it applies when an employer has ceased or intends to cease to carry on business for the purposes of which the employee was employed or intends to cease carrying on business in the place where the employee was so employed.

Section 7(2)(b) provides that it applies when the requirements of the business for employees to carry out particular work in the place where the employee was employed are expected to cease or diminish.

Section 9(2) provides that an employee shall not be considered dismissed for the reason of redundancy if he is reengaged by his employer for a different employment. Section 15 provides that an employee shall not be entitled to a redundancy payment if they have unreasonably refused an offer for new employment by the employer.

First, the respondent submits that it did not dismiss the complainant but that the complainant chose to not take up the alternative employment at the new restaurant.

It is a prerequisite to the complainant’s entitlement to a redundancy that he must have been dismissed by his employer. As a matter of fact, this has not happened. The complainant rather chose to refuse the offer of the same employment as a kitchen porter at the new restaurant. The complainant would have had the same terms of employment as he did at the old restaurant. The respondent is the same corporate entity and the only difference would have been the location of work, which the complainant indicated was not an issue.

Second, even if the respondent is deemed to have dismissed the complainant, the two most relevant grounds do not apply in the within circumstances.  

Section 7(2)(a) does not apply as the respondent did not cease to carry on the business that the complainant was employed for.

As stated above, the respondent intended to cease the business of the old restaurant but required the complainant to work at the new restaurant in the same position as he had worked.

The respondent’s business was not ceasing, but instead being carried out in a different location.

The complainant has specifically stated in his complaint form that he ‘had no issue with the geographical location of [the new restaurant] as the hotel is in the same town’.

This cannot, therefore, be a valid basis for claiming redundancy either.  

Section 7(2)(b) does not apply either for the same reason. It is clear that the respondent required the complainant to continue working for him in the same capacity that he had been.   Neither of the parties had any problem with the geographical location change. As neither of the relevant grounds apply to the within case, even if the dismissal is proven, then there was no ground which entitles the complainant to a redundancy payment.

The complainant would, in fact, have been materially better off working in the new restaurant.

Third, the provisions of the Act set out above clearly require an employee to engage with an offer made by an employer to relocate or to reemploy them in a slightly different capacity. In this case, the only difference between the employment at the old restaurant and the new restaurant would have been the location.

It is notable in this regard that the respondent would have remained the employer of the complainant at all material times. This was not a situation where the complainant was being transferred to a new corporate entity. An employee is not entitled pursuant to section 15 of the Act to blindly refuse to engage with reasonable offers made by their current employer and to insist that their employment has been terminated for redundancy.

On the basis of the information submitted and the legal position, the complainant is not entitled to a redundancy payment as the complainant chose to leave his employment.

The complainant was offered the same job in a different but extraordinarily close location and unreasonably refused it.

The complainant has an obligation to engage with reasonable efforts of his employer to offer him new employment. The complainant totally failed to do so.

The complainant is seeking a redundancy payment. The facts in the case are well set out above.

At the heart of this case is that the complainant and his co-workers (the employment of three others ended in similar circumstances) appeared to disbelieve their employer about how genuine the proposed transfer to the new location was.

There do not appear to have been any discussions between the parties and it also appears that the complainant reached a unilateral conclusion that he had been made redundant and served Form RP 77 on the respondent.

The respondent says that at no time did he intend to make the complainant redundant and that his actions represent an act of resignation.

The respondent’s actions undoubtedly gave rise for concern in respect of the lack of clarity about the move and what would follow.

However, the question is whether what appears to be grounds for concern can be seen as a termination of the employment on the grounds of redundancy, as he claims and then justifying a redundancy payment.

I find that it does not.

It may well be that the position could have gone either way in due course and the complainant’s fears may have been realised. If so the issue of redundancy might then have arisen.

However, as the respondent replied to solicitors acting on behalf of the complainant on June 12th that the complainant (and his co-workers) were continuing in employment on the basis of their existing conditions of employment any hiatus in respect of payment of wages, for example could easily have been addressed by means of a specific complaint under the relevant legislation.

He served the RP77 on the respondent on July 5th and then referred the complaint to the WRC on August 28th. It is not clear what happened in between as the owner of the respondent business did not attend the hearing. It would not be acceptable to leave the complainant and his colleagues in a state of limbo for the two-month period without any indication of where they stood. Admittedly they had a guarantee

However, the respondent again confirmed the fact that the complainant was still employed in further correspondence from his solicitor on September 3rd.

In his own evidence to the hearing it was clear that the complainant had reached conclusions about the employment that were not based on any actual information, and indeed were contradicted by the information he (through his solicitors) had been given by the respondent. It was obvious from his demeanour that he had simply decided that there was no future for him at the new location and decided that he would not work there.

It is quite clear that the complainant left the employment of his own accord, although under a cloud of considerable uncertainty about the new assignment. While some regard must be had to the uncertainty he had been given a clear statement about his continuing employment and while the respondent should have been clearer about the precise conditions under which the move would take place there are insufficient grounds to support a case for a redundancy payment on the facts set out above.

The respondent submitted that the complainant had not been dismissed but even if he had he had there was an offer of alternative employment.

I agree with both these submissions and the complaint fails.

Complaint CA-00030485-001 is not well founded and it is not upheld.

Redundancy payments.