Complainant

Respondent

Anonymised Parties

A Music Manager

A Music Management Company

Representatives

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-00023418-001

21/11/2018

The complainant says that she was made redundant but did not receive a redundancy payment.

She was placed on a three-day week after Christmas 2017 with the promise of a return to full time work in March.

This did not happen, and she continued to work a three-day week up until the employment terminated in July 2018.

She had a number of discussions with the respondent about either returning to full time work, or her having to leave on the basis of a redundancy payment.

She was considering returning to college and was also looking for alternative employment.

Despite having had some discussion with the respondent about remaining on a three-day week basis, the following day he approached to tell her that an earlier date agreed as being her last date at work.

She did not return to work.

The respondent outlined the trading and financial difficulties facing the company and the need to cut back on employee hours. There were cuts across the board including to his own salary.

The complainant had initially been employed on a three-day week and went on to a five-day week about a year later.

He understood that the complainant could not manage on a three-day week and was looking for alternative employment. She was also considering returning to education.

The position was not redundant, and no payment arises. His advice was that only where her working hours had been reduced by fifty per cent or more would a redundancy situation arise.

What exactly was going on in the discussions between the parties proved very difficult to unravel.

This was in large measure because the exchanges between them lacked clarity when they were actually taking place and was not made any easier with the passage of time.

There were discussions about the possibility of the respondent closing its Dublin office and relocating to Limerick. This led to an understandable degree of anxiety on the part of the complainant about her future.

It appears the complainant did say she would leave on the basis of her expectation that she would be given a redundancy payment and a date was set for her departure; July 12th.

On July 1st, she wrote to company stakeholders advising of her departure from the company. She appears to have done so on the basis of her expectation of a redundancy payment, although nothing had been confirmed.

She referred in her submission to the amount of redundancy she ‘was owed’, again even though there was no evidence of anything concrete having been agreed.

For her part, she interpreted various discussions regarding a possible future closure of the office in which she worked and a transfer of the business elsewhere as some sort of final decision regarding her job. It was premature to do so.

In the event the office did not close and while such a situation is obviously worrying for an employee until the position crystallises and a firm indication of redundancy is provided in accordance with the provisions of the Act, any act of voluntary termination on their part terminates the employer’s liability.

The parties met on July 11th and the respondent made it clear that employment on the basis of a three-day week remained available to the complainant.

The following day the respondent activated their earlier decision to set that date as her final day. She initially could not explain why she did not refer to the previous day’s discussion but it is clear that she was focussed on the prospect of a redundancy payment.

The situation was not helped by the respondent’s failure to state clearly whether or not a redundancy situation existed. He appeared to believe that the complainant could, in some way make a claim for redundancy even if he had not determined that her post was redundant.

For some reason, he asked his accountant to calculate what the complainant’s entitlement would be. This is despite saying that he was not offering her continuing employment and did not propose to make her redundant. In his email of July 12th, he offers to ‘process’ her redundancy claims even though her post, while it remains on a three-day week, is not redundant.

This is very odd behaviour; if the job was not being made redundant the respondent had an obligation to say so and lay the matter to rest. The suggestion that he would ‘process’ her claim was based on ignorance of the law relating to redundancy; an employee may, in general only claim a redundancy payment where the position they hold is being made redundant.

An employee cannot make a sort of speculative claim for redundancy, in the way they would make a pay claim.

An exception arises where an employee has been placed on ‘short time’ working and where her hours or earning fall below half of what they had been before being placed on ‘short time’. This did not apply to the complainant.

The complainant’s position basically was that she would not continue on a three-day week and would leave if she got a redundancy payment as she was planning to return to college.

As noted above, it reflects poorly on the respondent that he did not move to state the position decisively at an earlier stage, and he perhaps inadvertently, but irresponsibly encouraged the complainant to believe that the determination of her eligibility for a redundancy payment was a matter for her when it was clearly a matter for the business.

There were some efforts at an amicable settlement and an offer was made but unfortunately this did not result in agreement.

Nonetheless, I find that the termination of the complainant was ultimately a voluntary act on her part, and she was not made redundant nor is she entitled to a payment under the Act.

For the reasons set out above I do not uphold complaint CA-00023418-001 and it is dismissed.