ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020565

Parties:

	Complainant	Respondent
Anonymised Parties	{A Bartender}	{A Gastro Bar}

Representatives

John Keenan JRK Business Services

Company representative

Complaint(s):

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-00027128-001	18/03/2019

Date of Adjudication Hearing: 17/05/2019

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was a Bartender from 5th May 2007 to 22nd February 2019 when she was dismissed due to redundancy.

Summary of Complainant’s Case:

The Complainant worked in a Gastro Bar in the suburbs of Dublin which is accessible from the Luas. She worked as a Bartender for 26.5 hours per week. She lives in a rural area and it takes her 35-40 minutes to get to work by car. The Respondent took over the Gastro Bar in 2017. There was a strategy to run down the business. The Respondent concentrated on extending the gym business and did not invest in the Bar.

On 27 December 2018 she received an RP9 notice of temporary law-off and was informed the Respondent would be closed for at least 4 months from 31st December 2018. She was told this was due to the failure to obtain public liability insurance. In February the business was seeking interest from alternative tenants.

The Complainant was subsequently notified there was damage to the premises which would delay any potential reopening. There was financial pressure. She refused an offer of transfer to a bar near Amiens street due to extra cost, travel time, safety concerns which was offer was not reasonable.

On 8th February 2018 the Complainant completed part 8 of the RP9 notifying of her intention to claim the Redundancy Lump Sum due. On 25th February 2018 the Complainant formally claimed her lump sum statutory redundancy payment.

The Respondent returned the RP77 rejected the redundancy claim and relied on a clause in the contract signed following the transfer in 2017 requiring the Complainant to transfer:

“You may be required to work at other .. Group locations or temporary venues as temporary transfers or as part of your normal duties. You may be transferred, through instruction, without amendment to your terms of employment”.

The distance from the original place of employment to the bar near Amiens street is 12.6km requiring travel from the outskirts into the city centre. The Respondent suggested to avoid parking charges the Complainant would park at the old place of employment and use public transport to the inner city. It would take the Complainant an additional 60-80 minutes to travel to the new place of work, and find parking. Also the car park closed at 10.30pm when she came off her shift. The relocation would cost her 265 euro gross per month in additional costs for travel, fuel and parking. The Complainant’s hourly rate of pay is 10 euro per hour.

The Complainant relies on ADJ00010117.

Summary of Respondent’s Case:

In April 2017 the Respondent took over the Gastro Bar. There was a transfer of undertakings of existing employees. The company made a significant investment but had difficulties with the new business. It was losing money. The Employer paid lunchbreaks which is not the norm in the industry. There was a poor claims history. The Employer had difficulties in securing necessary insurances, and in late December 2018 was forced to close temporarily. The Respondent hoped it could re-open 4 months later when it had insurance, but this could take longer.

The company sought to obtain necessary insurance without success and considered offering the lease to another tenant as an alternative. On 14 February 2018 a major sewage leak was discovered, which would further delay the re-opening of the bar. The Bar has not resumed trading.

The Complainant had already agreed in her contract of employment to transfer to other work locations of the employer.

On 28th January 2019 the Employer offered relocation to another Bar near Amiens street in the city centre where they required staff. The staff were offered a temporary transfer with parking in the city centre, with return to the original Bar when it re-opened. The Employer then offered a permanent transfer to the new place of work and one thousand euro payment for inconvenience, with priority to return when the Bar re-opened. Parking was not provided for staff working in the original Bar.

The Respondent says that temporary layoff and temporary transfer is very reasonable measure to return staff to normal duties. The Respondent says a reasonable offer of alternative employment has been made and the company can relocate staff in accordance with their contract of employment. They communicated all the issues and kept staff advised on the delays. A cash uplift was offered to staff to relocate. No redundancy exists.

The Respondent disputes that Google has indexed the Bar as permanently closed as not reflective of the position due to the limited options available from Google. The Bar has not re-opened.

Findings and Conclusions:

This complaint was delegated to me by the Director General pursuant to S39 of the Redundancy Payments Acts 1967. I have heard the submissions of the parties at the hearing and considered the written submissions.

The entitlement to redundancy payment arises in Section 7 (1) of the Redundancy Payments Act 1967. An employee, if he is dismissed by his employer by reason of redundancy or is laid off kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided-

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts immediately before the date of termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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 that business in the place where the employee was so employer, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(2A) ………………………..

(3) For the purposes of subsection (1) an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks…

Section 8 of the Redundancy Payments Act 1967 provides:

(1) Notwithstanding anything in section 7, where an employee who has been dismissed by reason of redundancy or laid off has, during the period of the four years immediately preceding the date of dismissal or the lay-off, been laid off for an average annual period of more than twelve weeks, the following provisions shall have effect:

(a) that employee shall not become entitled to redundancy payment by reason of dismissal or lay-off until a period equal to the average annual period of lay-off over the said four-year period in relation to that employee has elapsed after the date of dismissal or lay-off;

(b) if, before the termination of the period required to elapse under paragraph (a), that employee resumes work with the same employer, that employee shall not be entitled to redundancy payment in relation to that dismissal or lay-off;

(c) if, before the termination of the period required to elapse under paragraph (a), the employer offers to re-employ that employee and that employee unreasonably refuses the offer, he shall not be entitled to redundancy payment in relation to that dismissal or lay-off.

(2) In a case where this section applies, the period of four weeks first referred to in section 12 or the period of thirteen weeks referred to in that section shall not commence until the expiration of the period (referred to in subsection (1)(a)) equal to the appropriate average annual period of lay-off.

The Respondent was compelled to close the Gastro Bar at the end of December 2018 due to difficulties in obtaining insurance for the premises. I am satisfied this is a genuine redundancy falling within the provisions of S 7( 2) a of the Redundancy Payments Act 1967.

The Complainant was laid off from 31st December 2018. She was offered alternative employment on 28th January 2019 and the Respondent relies on the clause which she signed on the transfer in 2017 agreeing to relocate to other premises. She sought her redundancy entitlement pursuant to S7 (2) a of the Redundancy Payments Act 1967 4 weeks after layoff.

The Complainant gave evidence that the proposed relocation terms offered of travel 12.6km will greatly inconvenience her. This will double her travel time from 35-40 minutes to 70-80 minutes each way as she is required to travel into Dublin city centre. It will increase her fuel costs. She was not offered work until 28th January 2019 and no reason was given for this.

The Respondent said the parking to be provided was near to the new place of work, and this is a temporary solution which is very reasonable. The Gastro Bar had not re-opened at the hearing 6 months later.

The relocation offered to the Complainant of travel of 12.6km is not a long distance, but in this instance it requires travel into the city centre. It doubles the Complainant’s journey time both ways and significantly increases her costs. In the circumstances, I do not find this to be an offer of suitable alternative employment and I also take into account that the Gastro Bar has not yet re-opened.

I find the complaint is well founded and the Complainant is entitled to a statutory redundancy payment from 5th May 2007 to 31st December 2018, at 10 euro per hour for 26.5 hours per week. This is based on the Complainant being in insurable employment under the Social Welfare Acts during the period.

Decision:

Section 39 of the Redundancy Payments Act 1967 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Dated: 12th November 2019

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Suitable alternative employment, relocation expenses,