Complainant

Respondent

Anonymised Parties

Door Supervisor/Security

A Pub Business

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00023963-001

06/12/2018

This case surrounds the circumstances of acclaim for a redundancy lump sum payment post lay off. The claim is contested by the Respondent. The Complainant is a lay litigant the Respondent is represented by David Gaffney, Solicitor.

The Complainant represented his own case. He outlined that he had worked as a Door Supervisor at the same Pub Business from 1 November 2015 to the date of dismissal of 26 September 2018. A Transfer of undertakings had taken place on March 21, 2018. The complainant worked a 16-hour week in return for €272 per week gross.

The Complainant was placed on a 6-week temporary layoff on March 28. He was not familiar with this situation. He was unable to obtain job seekers benefit as he already had a day job. He experienced an extended period of uncertainty during lay off. There were plans to reopen in May 2018 and he requested some feedback on his return to work. He was unable to obtain clarity on the hours offered. He also understood he was being asked to man the door of the smaller bar which was set to re-open as a sole static security presence which was in contravention with the existing agreement where once 5 Security was reduced to 3 security, nobody worked alone. The area where the bar was situated was rough and risky. He was not able to resume work in the circumstances where he understood the offer was not comparable in position or in hours. He  understood that his job as he knew it was gone.

The Complainant eventually took advice and applied for a lump sum redundancy payment on August 22, which was refused .On August 27 , the respondent offered 14 hours a week but as the complainant had already found alternative work 5-6 weeks post lay off , the offer was not viable and was too late to be of benefit to him .His hours of work had been 7pm to close of business on two nights a week and he was offered an 11 pm start .

He submitted an RP 9 form on 7 September 2018 by post and failed to receive a response.

The Complainant received an email dated 26 September which confirmed that his P45 was being processed immediately. He has not contested this dismissal.

The Complainant submitted that he was entitled to a redundancy lump sum payment as he was not met with a suitable offer of employment post lay off.

The Solicitor for the Respondent outlined the case on behalf of the business. The Respondent took over the business where the complainant was employed in March 2018. The financial circumstances of the business were grave a necessitated closure for several weeks to address this situation.

The Respondent wrote to the complainant on March 28 placing him on lay off and confirming that he would be contacted in due course once the refurbishment estimated at 6 weeks duration neared completion. He also indicated that following a financial assessment of the company “one or more redundancies “may be necessary.

On 15 May, the Respondent wrote to the complainant. The parties had met on 30 April and had discussed security arrangements going forward where a small bar was planned as opening prior to the eventual relaunch of the main bar, some months forward. The complainant had indicated that he did not wish to work alone, and the respondent offered back up from the general manager. The Complainant was asked to respond before the question of hours could be calculated.

The Respondent received a reply from the complainant dated 13 June 2018 which referred to the past reliance of a security trio to man the premises and he stated that he was not willing to work alone at the suggested location. The Complainant was asked to reconsider.

The Respondent met with the complainant on 30 July to enquire into his availability to provide security in the smaller bar. The Respondent attempted to describe that the scaled down business did not require the presence of a security duo and reaffirmed the presence of back up .The Respondent recorded that the complainant had refuse that offer and detailed that the complainant was then offered alternative work in a different presence on the same rate of pay and as many night as he needed , albeit the start time was to be 11 pm and not 9 pm. The Respondent submitted that the complainant had expressed a desire to wait and see how the re-opened business would go. He had already committed to work at a different premise.

The Respondent expressed a difficulty with this option and called on the complainant to return to work within a period of 7 days. The complainant sought similar shifts to those he had for his return to be financially worthwhile. The Respondent was unable to provide the identical shifts but had work for the complainant. This was communicated in an August 29 email where redundancy was denied.

The Respondent confirmed receipt of a signed RP 9 form by the complainant on 12 September. The Respondent completed Section C contesting redundancy and returned it to him.

A period of uncertainty followed where the Respondent understood that the complainant was not coming back to work and issued his P45 in October 2018.

The Respondent representative contended that the complainant had been unreasonable in refusing suitable work post the completion of the lay off period. He had found other work and was not available to return.

The Respondent argued that the complainant had not taken the time to try the offer of return as Section 15 of the Act gave him some protections in this, but the complainant had refused to return.

The Complainant had not signed the contract of employment dated from 2016. The Respondent business had hit an unplanned glitch on takeover in March 2018. They believed they had treated people fairly in communicating the terms of lay off and invitation to return to work and were disappointed when the complainant did not return. They were faced with an incremental plan to re-open the business and the complainant was offered work on the same pay and hours. The hours were expected to become more settled once the colleges re-opened and the main bar relaunched. The Respondent submitted that it had not been party to the arrangements where a security duo was an essential requirement for work.

The Owner of the business addressed the hearing and explained that he had told the complainant that his position was still there for him and asked for some accommodation to allow for business to return in full.

I have listened carefully to both parties in this case. I have read the written documents submitted. This is a claim for a redundancy lump sum payment which is contested by the respondent claiming suitable work was on offer to the complainant. The complainant in turn had denied that it constitutes suitable work.

An employer is entitled to dismiss one or all of its employees where the employees position becomes redundant in accordance with scenarios outlined in Section 7 (2)of the Act .It is based on impersonality and change and must arise “ wholly or mainly “ from one of the five situations outlined in Section 7(2) of the Act .St Ledger V Frontline Distributors Ireland ltd [1995] ELR 160 .

The Complainant in this case was placed on temporary lay off swiftly post transfer of undertakings setting. A right to a redundancy payment can arise from a period of temporary layoff. Form RP 9 exists to guide the parties in this process as it provides helpful guidance to correspond to the time lines set out in Section 12 and 13 of the Act. I understand that verbal notice of lay off is enough. In this case, notice was provided in writing to assist with social welfare payments. It is regrettable that RP 9 was not led out by the Respondent in this case as it would have alerted both parties to the nuances of lay off.

Where an employee has been laid off for the requisite periods, he may give the employer written notice of his intention to claim a redundancy payment. Alternatively, he may resign his position with contractual notice and this will be taken as a claim for redundancy payment.

To secure a lump sum payment through redundancy a dismissal must be in being. In this case, there was no dismissal and no resignation from employment up until the P45 was issued dated 4 October 2018.

In the instant case, the complainant accepts that he was offered work from July onwards, however, he has argued with conviction that this offer did not amount to suitable work. The Respondent has rebutted this relying on the tumultuous trading period of April 2018 to September 2018 and the slow rebuilding of the business. The Respondent contested the application for a lump sum payment on September 12.

I have reviewed the documents submitted and I noticed there was a slight variance in two issues submitted by the Respondent. In the book of documents, the date of reception of RP9 from the complainant was acknowledged as being received on 12 September and it was recorded as 11 September on the supplementary document. In the book of documents, the RP 9 was mentioned as having been attached and in the supplementary document, it was mentioned as completed. None the less the Respondent complied with the terms of Section 13 of the Act here.

I am being asked to decide whether the offer of work made by the respondent to the complainant was suitable work? In a UK case of Executors of Everest v Cox [1980] ICR415, the need to take account of the employees’ subjective perception of the alternative job must be considered:

The employee’s behaviour must be judged from her point of view based on the facts as they appeared, or ought reasonably to have appeared to her at the time the decision had to be made

In all of this I must consider the wording of Section 15 of the Act

Disentitlement to redundancy payment for refusal to accept alternative employment.

15

15.— (1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of F34 the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section. (2B) Where —

(a) an employee’ s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer,

such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

In this case, the complainant had not signed a contract of employment. The contract presented by the respondent was an elaborate document which contained flexibility, mobility clauses and references to 8 am to 5pm workings. However, it was not an operational document as it was unsigned and not helpful to me in my assessment of the facts of the case. It is regrettable that the issue of contract was not addressed under the due diligence in TUPE.

The complainant has submitted that he maintained his core day job throughout the employment and was unable to claim any benefits during the layoff. He explained that he normally worked an accumulation of 14-16 hours over two shifts weekly. He confirmed that he had been holding out for the identical job he left, while prioritising his working conditions of not working alone. His pay was to be unaltered. The offer fell for the complainant on the conditions of work offered, i.e. the 14 -16 hours may have been needed to be worked cross site some 400-600 metres apart, albeit at a later start time of 11 pm pending a review once the business was fully operational.

I understood at the hearing that he had moved on in terms of his work and had found something that suited his domestic arrangements more favourably, however, he held a strong contention that he held a clear entitlement to redundancy.

I have taken some guidance from a very recent Labour Court decision in Noonan Services Group Ltd and the Estate of Rose Anne Kenny, RPD 198 where the Court after much deliberation arrived at the conclusion that the complainant in the case was not unreasonable in her refusal of an alternative offer. The Court listed the changes perceived by the complainant in relation to the offer.

For me, the complainant was offered his job back based on 14 to 16 hours, on the same pay and in the same location albeit there may have been a need to relocate a short distance to get full hours at the beginning until the colleges re-opened. He submitted that this would undermine his time at home and the long-standing arrangement where he would have to work alone. He was not reassured by the offer of back up.

I asked the complainant at hearing why he did not consider trying the offer without prejudice to his claim? He told me that he was not obliged to try it, as he had determined that his job was gone. His return to suitable work was not permitted.

The Respondent held a different view, the world of lay off was new to them and they had tried to return the complainant to his position, where he was valued and were certain that things would pick up once the colleges re-. opened. They expressed a high level of weariness at the efforts made to re-employ the complainant post lay off in July 2018 and were adamant that suitable work existed.

I am satisfied that the complainant was to be reemployed as a security person post lay off. He had described his role as head of security, but this was not reflected in any documentation. He was to be paid the same. I cannot establish that an agreement on the security duo was in being. It may have been a practice agreed within the security group but had not been endorsed by their management as far as I can make out. I noted that his RP 9 indicated a start date for lay off as 28 April rather than March 2018.

I appreciate that the complainant was somewhat unsettled at being placed on lay off so soon after the business was taken over, However, I have concluded that he did not engage sufficiently with the respondent on his proposed back to work. He had found something more suitable and I understand that.

In all the circumstances, I have found that the complainant unreasonably refused the offer of employment. I noted that the Respondent was prepared to replicate his position in full and work with him on returning to his roster as business picked up. I believe that the complainant was not advised on the protections contained in Section 15(2)(2) (a)(b) of the Act and discussed at hearing.

I have empathy for the complainant in the case, however I must find that the claim for redundancy lump sum payment is not well founded in accordance with Section 15(2) (e). He has unreasonably refused the offer of employment post lay off.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complainant was unreasonable in his refusal of offer of re-employment post lay off. I have found the claim to be not well founded.

Claim for Redundancy Lump sum payment