FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : INSTORE MERCHANDISING AND DEMONSTRATING LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES IRELAND LIMITED) - AND - BERNADETTE GEOGHEGAN DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00015068.
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. Geoghegan is the ‘Claimant’ and the employer is the ‘Respondent’.
The Claimant began working for the Company in October 2010, initially as a ‘Demonstrator’ for the Company, which is involved in in-store merchandising. From January 2015, she was assigned a total of 3 days per week of demonstrating in the store of a client. In January 2018, the client indicated that it was taking this role ‘in-house’. The Respondent advised that this work would be available to the Claimant only when required by suppliers or the third party clients's additional needs. In effect, only one or two days per week could be offered on this work. In March, the Claimant indicated that she wished to be removed from the agency data base for this work due to the reduced hours. 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 Adjudication Officer determined that the Claimant’s contract did not guarantee working hours and was of the ‘if and when’ type which, pending legislative change, is of a type that is legal. The Adjudicator heard evidence that there was other work available and decided that, given the nature of the contract, no redundancy had arisen.
The Claimant appealed this decision to the Labour Court.
Claimant’s arguments
1. The contract of employment provided that the respondent would contact the Claimant on a weekly basis to offer work, if work was available. This did not happen. The assumption was made by the Respondent that the Claimant would turn up for work on a weekly basis in the same location. The only time the Claimant was not available for work was for pre-arranged holidays or certified sick leave.
2. A colleague with the same terms and conditions was successful in a claim for redundancy at the WRC.
3. The Claimant never resigned but indicated that she could not accept one day’s work in lieu of three each week.
Respondent’s arguments
1. The Claimant’s contract provides that there is no minimum number of hours guaranteed and that 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 as it complies with the contract.
.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 at least one day’s work per week.
3. A custom and practice cannot over-ride an express contractual provision and the Claimant’s contract provided that work could not be guaranteed and that hours were variable.
Preliminary Matter
The Claimant included reference to a case under the Employees (Part-Time) Act 2001 in her appeal. This had not been heard at adjudication. Therefore, the Court had no jurisdiction to deal with the matter.
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 notes that the nature of the contract of employment provided no guarantees on working hours. Notwithstanding this, 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 her 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.
The Court is aware that legislation has been passed that makes the circumstances of this case less likely to arise in future, as contracts of the nature applicable in this case are to be rendered unlawful. Unfortunately for the Claimant, the prevailing law applies to her. The Respondent was entitled to vary her working hours under her contract. Doing so did not create a redundancy.
The Court upholds the decision of the Adjudication Officer and the appeal fails.
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.