Complainant

Respondent

Anonymised Parties

Security employee

Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00024699-001

04/01/2019

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

CA-00024699-002

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00024699-003

04/01/2019

The complaints are that the Complainant was entitled to a statutory redundancy payment when the site he worked in closed down and he was not offered a reasonable alternative, and that he was not furnished with written terms and conditions of employment and that he did not receive minimum notice.

The Complainant commenced his employment in 2004. From 2006 he worked on a particular site where he remained for the duration of his employment until 31st July 2018 when the site closed. He had worked a regular 39 hour week. The Respondent took over the security contract and a transfer of undertakings occurred for the Complainant’s employment 2010. The Complainant was offered totally unsuitable alternatives – one site was considered a dangerous hazard by him, having to work nights, with no mobile phone reception and no facilities. He was then offered other sites, which were either a long drive via dangerous roads or not full time positions. The Complainant submits that in such circumstances he is entitled to redundancy. He further claims that he should have received minimum notice.   He further claims that he received no written contract.

The Respondent refutes the claim that the Complainant was not furnished with written terms of employment and a copy of the contract was submitted. The Respondent further contends that the Complainant is not entitled to either redundancy or minimum notice. The circumstances were that when the site closed, the Complainant was given alternative employment and then offered other employment. Some alternatives were discussed with the complainant but he did not take up the offers.

CA-00024699-001 – Terms of Employment

I note the written terms of employment submitted by the Respondent and I do not find the Complainant’s complaint to be well founded.

CA-00024699-002 - Redundancy

Section 15 of the Redundancy Payments Act 1967 sets out the grounds of disentitlement to redundancy payment for refusal to accept alternative employment:

“15 (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”.

I note that the Complainant had worked for the previous employer and the current Respondent for an aggregate of some 14 years.   The site on which he worked a regular 39 hour week closed in July 2018. I note that he was briefly deployed on what was described by the Complainant as totally unsuitable, involving night hours, no mobile phone reception and having to sit in his car as there was no canteen facility. He was then offered other work which he found unsuitable for various reasons, including driving long distances. In the circumstances, I find that the provisions of the new contract would differ wholly or in part from the previous one, and the offers did not constitute offers of suitable employment. I therefore conclude that the Complainant did not unreasonably refuse the offer of alternative employment. I find the Complainant is entitled to a statutory redundancy payment provided he has been in insurable employment for the period, based on the following:

Date of commencement of employment:  31/07/2004

Date of termination of employment:           31/07/2018

Basic gross weekly pay (based on 39 hr week): €442.65

CA-00024699-003   -   Minimum Notice

The circumstances in which the employment ended are outlined above.   The Complainant did not make himself available for work and therefore minimum notice is not relevant or appropriate. I do not find the Complaint to be well founded.