FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : INSTORE MERCHANDISING AND DEMONSTRATING LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES IRELAND LIMITED) - AND - NATASHA COLLEY DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00015256.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Act 1967. A Labour Court hearing took place on 21st January 2019. The following is the Determination of the Court:-
DETERMINATION:
Background
For ease of reference, the titles used are those used in the first instance, so Ms. Colley is the ‘Claimant’ and the employer is the ‘Respondent’.
The Claimant began working for the Company in May 2014. The Company is involved in in-store merchandising. In January 2018, the client indicated that it was taking the role of in-store cold tasting ‘in-house’. The Respondent advised that this work would be available to the Claimant only when required by suppliers or the third party client’s additional needs. In effect, only one or two days per week could be offered to the Claimant, compared to three previously. The third party client wished to reduce the skills required to run the kitchen and sought to establish if the Claimant could run the kitchen on her own. The Claimant declined to be interviewed. 21 April 2018 was the last date of the current contract with the third party client. There is a disagreement between the parties as to whether or not the Claimant resigned but it is common case that no work was offered after that date. The Claimant then sought a redundancy payment.
The matter was referred for adjudication by the WRC. The Respondent did not attend and the Adjudication Officer decided that a redundancy had occurred.
The Respondent appealed this decision to the Labour Court.
Claimant’s arguments
1 The Claimant was never given a contract of employment. She worked solely for the Respondent up to April 2018. She was expected to turn up for work in the store each working day.
2 The Claimant never resigned but indicated that she could not accept one day’s work each week.
3 The Claimant was never offered work after April 2018 when the current contract ended with the hirer. She was offered a small settlement, which she declined.
Respondent’s arguments
1 Although there is no written contract, it is the nature of the business that there is no minimum number of hours that can be guaranteed and hours will be determined by the needs of the client and the company. Therefore, a reduction in the hours of work available does not amount to redundancy.
2 The Respondent was entitled to regard the unwillingness of the Claimant to attend an audition that would likely lead to work, albeit on the basis of reduced hours, as a resignation. The Claimant was guaranteed work when it became available.
3 While it is accepted that an argument could be made regarding ‘short-time’ within the meaning of the Redundancy Payments Acts, this arises only on the expiry of a period of time and in the event that the respondent cannot provide alternative work.
Determination
There was disagreement between the parties as to the earnings of the Claimant. This is relevant only if the Court was to determine that there was a redundancy within the meaning of the Act.
The Court considered if s. 11(2) of the Act, which describes the circumstances of short-time within the meaning of the Act, could be applied in this case, as the Claimant’s potential remuneration was less than half of existing pay under the new proposed arrangements. However, that provision is qualified by the time requirements set out in s.12 of the Act before this can be claimed. As the Claimant had not been on short time for four or more consecutive weeks or for six or more weeks within a thirteen week period, s.11(2) is not applicable.
There is no written contract of employment in this case, on which either side can rely. There is no doubt that there was an informal contract of employment and a ‘de facto’ employment relationship accordingly and that the nature of this contract and relationship resulted in variations in working hours over the period of employment. Therefore, while the reaction of the Claimant to the prospect of considerably reduced hours was perhaps understandable, in fact there was no established right to specific working hours and the Court accepts the argument that the ‘de facto’ contract was in its nature an ‘if and when’ contract.
The Court is aware that legislation has been passed that makes the circumstances of this case less likely to arise in future, as ‘if and when’ contracts are to be rendered unlawful. Unfortunately for the Claimant, the prevailing law applies to her. The Respondent was entitled to vary her working hours. Doing so did not create a redundancy.
The Court overturns the decision of the Adjudication Officer and the appeal is allowed.
Signed on behalf of the Labour Court
Tom Geraghty
TH______________________
4 February 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.