Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

John J Quinn & Co Solicitors

Gerard Groake B.L. instructed by Gallagher & Co. 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-00018669-001

23/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018669-002

23/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00028462-001

11/02/2019

The complainant was employed by the respondent as a Security Officer. The complainant was assigned to a client site in Co Longford. His employment with the respondent ended on 28th February 2018. The complaints relate to alleged unfair dismissal and the non-payment of redundancy entitlements. The complainant also sought his minimum notice entitlements and raised this issue for the first time at the adjudication hearing on 11th February 2019.

Note: At the adjudication hearing, the complainant’s representative verbally withdrew the redundancy complaint as he was of the view that he could not pursue both the unfair dismissal complaint and the redundancy complaint. It was clarified that both complaints could be pursued but that in the circumstances both complaints could not succeed. The complainant’s representative then sought to have the redundancy complaint re-instated. Having taken instructions in the matter, Counsel for the respondent objected to the reinstatement of the redundancy complaint.

Having considered the matter, I am of the view that, it is appropriate for both complaints as submitted to be considered individually and adjudicated upon in the normal way.

The complainant stated that he was not paid his redundancy entitlements by the respondent in circumstances where his employment ceased on 28th February 2018 and the alternative roles that he was offered were not suitable to him.

The respondent stated that the circumstances of the complainant’s employment are somewhat unusual. The respondent provided security services to a client at its site in Longford. The client gave the respondent a verbal assurance that if the respondent were to lose the contract at its site, the client would directly employ the complainant or discharge his redundancy entitlements. The respondent stated that it subsequently lost the contract at the client’s site, yet the respondent did not honour what had been agreed verbally.

The respondent stated that it had issued the complainant with a P45 as it expected its client to honour the verbal agreement and when it did not, the respondent stated that it revoked the P45, repaid the complainant all salary payments due to him as if he had not been issued with a P45 and provided him with two different offers of continued employment which it believed to be reasonable and suitable to him.

The respondent stated that another of the complainant’s colleagues accepted the initial transfer to the Athlone site and ultimately transferred to the site in Co Fermanagh.

The respondent stated that as it had offered the complainant suitable alternative employment, which had been refused, the complainant was not entitled to receive a redundancy payment.

The respondent in this case was verbally assured by its client that the complainant would be employed directly, or his redundancy entitlements would be discharged if it transpired that the respondent lost the security contract at the site where the complainant was employed. This verbal agreement was not adhered to by the respondent’s client when those circumstances arose.

The respondent then offered the complainant two alternatives; employment at a site in Athlone, Co Westmeath which was working solely on night shift or an alternative position in Co Fermanagh which would involve travelling an additional 100kms per day. I note that the complainant deemed the Athlone option as unsuitable as it involved night work only and, in any event, the respondent lost the contract for the provision of security services at that location shortly afterwards. The Fermanagh location was also deemed unsuitable given the excessive distance involved.

The Applicable Law

Section 7(2)(a) of the Redundancy Payments Act, 1967 provides as follows:

7 (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a)   the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

Suitable alternative employment

Assessing the suitability of a new work location is a subjective test and a matter for the complainant to consider. The complainant decided that the distance was excessive to the new work location in Co Fermanagh and was therefore unsuitable. There is significant legal precedent on this issue concerning offers of alternative employment and the suitability or otherwise of new work locations. Such cases include Earley v Floorstyle Contracts Limited RP382/2003, Wybrant v MKB Catering Limited RP511/2012, Finnegan v Finnegan McKenna RP979/2009, Murphy v Orbit Security Ltd RP597/2012 and Fitzpatrick v Greenbury Ltd, RP 703/2012.

In relation to the Athlone site, I accept the complainant’s position that the change from a mixture of day shifts and night shifts to working solely on night shifts was also unsuitable. This option, even if were deemed suitable by the complainant, would have been short lived due to the loss of the security contract at that location.

In all of the circumstances of this complaint, I find that the complainant’s employment ended by reason of redundancy on 28th February 2018 when the complainant deemed offers of alternative employment to be unsuitable.

Having considered the submissions of both parties, I declare that the complaint is well founded.

The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment: 2nd January 2007

Date of cessation of employment: 28th February 2018

Gross weekly rate of pay: €550.00

The entitlement to a redundancy payment is based on the complainant having been in insurable employment under the Social Welfare Acts for the relevant period.

The respondent refutes that the complainant was dismissed. The respondent stated that it issued a P45 to the complainant after it lost a contract to provide security services at a clients site and in circumstances where a verbal agreement had been reached with the client to directly employ the complainant. The respondent stated that the client did not honour the verbal agreement and as a gesture of goodwill it revoked the P45, repaid the complainant all salary payments due to him as if he had not been issued with a P45 and offered him suitable alternative employment which was refused.

The complainant stated that he was dismissed by letter dated 6th March 2018 confirming his last date of employment was the 28th February 2018. The complainant is seeking compensation in relation to his complaint.

The Adjudication decision in Complaint Application CA-00018669-001 above found that the complainant’s employment ended by reason of redundancy. Accordingly, I find that the complaint of alleged unfair dismissal does not succeed.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complainant stated that, by virtue of his length service with the respondent, he was entitled to six weeks’ notice of the termination of his employment. The complainant is seeking a payment of six weeks’ gross pay in lieu of notice entitlements.

The respondent contends that the entitlement to notice does not arise as the complainant was not dismissed and refused offers of suitable alternative employment.

This issue was raised for the first time at the adjudication hearing on 11th February 2019. The complainant’s employment ended on 28th February 2018. This complaint was raised outside of the statutory six-month time limit. There was no application to extend time on this issue.

Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

As this issue was raised outside of the time frame permitted by the legislation, and in the absence of an application to extend time, I find that the complaint is out of time.

Having considered the submissions of both parties, I find that the complaint is out of time and is therefore statute barred.

Unfair Dismissal, Redundancy entitlements