RPD1915

This is an appeal on behalf of MCR Outsourcing Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00019051, dated 30 July 2019) under the Redundancy Payments Act 1967 (‘the Act’). The Adjudication Officer decided that Mr Con O’Brien’s (‘the Complainant’) claim for a statutory redundancy payment under the Act was well-founded. The Respondent’s Notice of Appeal was received by the Court on 4 September 2019. The Court heard the appeal in Dublin on 19 November 2019. The Court took evidence from Mr Geoffrey Doyle, the Respondent’s Operations Director. The Complainant did not make himself available to give evidence.

Factual Matrix

The material facts agreed between the Parties can be summarised as follows. The Complainant’s service with a prior employer (Allied Security), from July 2004, is continuous with his service with the Respondent as the relevant business operated by that prior employer was acquired by the Respondent, in or around June 2010, by virtue of a transfer of undertakings within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The Respondent is an employment agency within the meaning of the Employment Agency Act 1971 and is primarily a supplier of labour into various industry sectors, including the security industry. The Respondent was employed by the Respondent as a security officer at Gleeson’s Water Plant, Borrisoleigh, Co. Tipperary until 31 July 2018 when the Respondent ceased to provide security services to that client. The Respondent had informed the Complainant and another colleague employed at the site some weeks prior to 31 July 2018 that their services would no longer be required at that site and that it would source alternative employment for them. The Respondent was aware at the time that it was successful in tendering for a contract to provide security services at a windfarm being constructed by Enercon at Ballingary in County Tipperary and that security work suitable for the Complainant would become available at that site in the near future.

In the meantime, the Complainant next worked for the Respondent for a period of three weeks between 22 August and 6 September 2018 providing security at a construction site operated by Beatty Balfour at Lackendarragh.

On 13 September 2018, Mr Fitzgerald by letter of that date sent by email only toinfo@mcrgroup.ie(an email address advertised on the Respondent’s website) – and addressed to the Respondent’s Company Secretary but marked for the attention of Jeffrey (sic) Doyle purported to advise the Respondent, inter alia, as follows:

• “We are furthermore instructed by our client that since [31 July 2018] he has been laid off and/or placed on short time such that a right to a redundancy payment arises.”

• “Dear Con,

  You and I have been discussing a new security contract starting in Tipperary. The contract began on the 3^rdof October. I told you I would keep a position there for you, which I have. However, I have phoned you and texted you on several occasions to make you aware of this, but you have not returned any of my calls.”

Mr McManus submits that Mr Fitzgerald, Solicitor “wrote to the [Respondent] seeking to assert the [Complainant’s] right to a redundancy payment” on 13 September 2018 and that that letter constituted a “notice … in writing of [the Complainant’s] intention to claim redundancy payment in respect of lay-off or short time” within the meaning of section 12(1)(b) of the Act. Counsel told the Court the letter of 13 September went unacknowledged by the Respondent and the next communication that the Complainant received was a text message from Mr Geoffrey Doyle on 27 September 2018 generally informing the Complainant that “a new security contract in Ballingarry is starting” and advising the Complainant to telephone Mr Doyle “as soon as you can”. In those circumstances, Counsel submits that the Respondent had failed to give counter-notice, within the meaning of section 13(2) of the Act, within seven days after the notice of intention to claim.

There is a second element to Mr McManus BL’s submission which appears to be made in the alternative to his submission regarding the application of sections 12 and 13 of the Act to the facts of the case. That second element relates to the suitability or otherwise of the alternative employment at Ballingarry, referenced in Mr Doyle’s text message of 27 September 2018, which employment counsel submits was “materially different than the terms and conditions on which [the Complainant] had been engaged prior to his termination” (sic):

• “The [Respondent] in making an offer of alternative [employment], chose to materially change the terms and conditions of the prior contract. The number of days to be worked would be more each week, there would be night work involved and the general facilities would not be sufficient.”

The Respondent denies that it received Mr Fitzgerald’s letter sent by email on 13 September 2018 toinfo@mcrgroup.ieMr Parkes, Solicitor, submits that the first sight that the Respondent had of the letter was at the hearing before the Adjudication Officer. Mr Doyle initially thought that the email address to which the letter was sent may have been a historical address and was no longer in use by the Respondent. However, both Parties confirmed during an interval in the hearing that the address is currently advised on the Respondent’s website. Mr Doyle was unable to ascertain who is responsible for monitoring correspondence sent to that email address.

It is also submitted on behalf of the Respondent that the offer of employment at the Ballingarry site constituted an offer of suitable alternative employment that had been initially accepted by the Complainant and that the Complainant’s failure to revert to Mr Doyle’s text message of 27 September 2018 disentitles the Complainant to a redundancy lump sum under the Act.

Mr Doyle told the Court that he maintained contact via text and telephone with the Complainant from the period prior to his cessation of work in Gleeson’s up until his final text message of 27 September 2018. According to Mr Doyle, he had informed the Complainant that the work in Ballingarry at the Enercon site would be coming on stream and that the Complainant had indicated he would be willing to take up employment at that site when it materialised. He says, after the cessation of work in Borrisoleigh, the Complainant voluntarily chose to take a few weeks off. Mr Doyle denies that the Complainant was either officially or unofficially laid off. Again, according to Mr Doyle the Complainant chose to take the temporary work that was available at the Lackendarragh site but refused other temporary work that was available in the Limerick area. Mr Doyle said that while he did speak to the Complainant on three or four occasions by telephone, he also had a number of missed calls to him that weren’t returned. Likewise, he says he sent text messages to the Complainant but received no replies. Finally, Mr Doyle says he decided to write to the Complainant on 8 October 2018 to document his previous attempts to make contact with him.

Discussion and Decision

There is clear disagreement between the Parties as to whether or not the letter of 13 September 2018 was sent by the Complainant’s Solicitor and/or received by the Complainant. Unfortunately, Mr Fitzgerald was not present at the hearing of the appeal to deal with the issue personally. Mr McManus BL gave an undertaking to the Court that he would request Mr Fitzgerald, his instructing solicitor, to furnish the Court with a copy of the email under cover of which the letter of 13 September 2018 was purportedly sent to the Respondent. As it transpired no such email was furnished to the Court. What was received by the Court was an unsigned letter dated 20 November 2019, appended to an email of the same date, and which stated, inter alia, as follows:

• “We confirm that the letter claiming redundancy was sent to the Respondent by e-mail on the 13^thof September 2018 at 15:47. We confirm that the message was not returned to sender.”

In any event, the Court is of the view that it is not necessary for it to resolve this conflict because the letter as written, in the Court’s view, does not amount to a clear and unequivocal statement on behalf of the Complainant that he was seeking to activate an entitlement pursuant to section 12(1)(b) of the Act to a redundancy lump sum payment. The letter does not specify the basis for such a claim in so far as it refers to the Complainant as having been “laid off and/or placed on short time”. There is also no reference in the Solicitor’s letter to the Complainant’s three weeks of employment at the Lackendarragh site and how this impacts on the assertion that he had been laid off and/or placed on short time or on the computation of the duration of any such period of lay-off or short-time. It would have far more preferable and would have ensured that an unambiguous notice of intention on his client’s part to claim a redundancy lump sum arising from a lay off had been communicated to the Respondent, had Mr Fitzgerald completed and served Form RP9 on the Respondent. In making this observation, the Court acknowledges that Form RP9 is not a statutory form , however, it is provided by the Department of Employment Affairs and Social Protection for use in cases of lay off and short time.

If the Court is wrong about this, it must, nevertheless, have regard to the uncontradicted evidence of Mr Doyle to the effect that the Complainant was never officially or unofficially laid off because the Complainant himself voluntarily chose to take some time off after the cessation of works in Borrisoleigh before taking up the temporary role for three weeks in Lackendarragh. Furthermore, the Complainant chose not to give evidence to the Court and, therefore, the Court has no understanding of the basis on which he asserts that the offer of employment at the Enercon site did not constitute suitable alternative employment in his case.

Having regard to the Parties’ submissions and to Mr Doyle’s uncontested evidence, the Court determines that the Complainant has not established that he fulfilled the requirements to claim a redundancy lump payment pursuant to section 12 of the Act. Neither has the Complainant established that the Respondent failed to offer him suitable alternative employment between July and October 2018. In all the circumstances, therefore, the appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
25 November 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.