Complainant

Respondent

Anonymised Parties

A retail shop employee

A retail and wholesale meat business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018635-001

20/04/2018

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

CA-00018635-002

20/04/2018

The complaint is for redundancy.

The Respondent contends that the Complainant was offered suitable alternative work.

CA-00018635-001 - This complaint is withdrawn

CA-00018635-002

The Complainant worked in a shop for the Respondent, which operated both a retail and wholesale smoked meat business in Monaghan, Cavan and Nenagh.

On 9 September 2017 the Complainant was told that the shop in which she worked would be shutting down. On that day she received a hand-written notice from her employer which offered alternative work in a meat processing plant in Nenagh and one in Cavan. She was not trained to do factory work and declined this offer. She denies that the job was explained to her as being a retail job within a factory premises. No terms and conditions of the new position were explained to her.

Her job came to an end on 10 October 2017 and she was not paid a redundancy payment

The Respondent operated a smoked meats business. It had factory premises in Nenagh, Cavan and Monaghan. In Monaghan the Respondent operated a small retail premises which was where the Complainant worked.

Over time this shop proved unprofitable and in September 2017 the Respondent was forced to close the shop while continuing the wholesale business elsewhere. On 9 September 2019 he approached the Complainant and gave her a written notice that the shop would be closing and offering suitable alternative work either in Nenagh or Cavan. He says that these offers were immediately declined by the Complainant who did not ask anything about the alternative jobs. He accepts that the note refers to “factory” however it was his intention that the Complainant would work in a retail outlet within the factory premises. He believes that she intended to leave anyway and work for another employer. She left for holidays on 10 October 2017 and never made contact with him again.

CA-00018635-001 – Complaint withdrawn

CA-00018635-002

The legislation relevant to this complaint is Section 7(2) and Section 15 of the Redundancy Payments Act, 1967, which states;

Section 7(2):

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed.

This applies to the facts of the present case as the Respondent’s shop, in which the Complainant worked, was closed on 10 October 2017 and the Complainant ceased working there.

Section 15 states that an employee, who has been made redundant, shall not be entitled to a redundancy payment if in the period 2 weeks ending on the date of dismissal the employer re-engages the employee under a new contract of employment, the terms and conditions of which does not differ from that possessed under the former contract.

This has been interpreted in the Employment Appeals Tribunal and the Labour Court to mean the new position shall constitute “suitable alternative work.”

Therefore, if a shop closes an employee is entitled to a redundancy payment to reflect the years spent working in that shop, unless a section 15 offer is made, which does not mean that the redundancy has not occurred but rather means that if an offer is made in proper compliance with section 15, the redundancy payment which would normally arise, is not payable.

The Respondent in this case concedes that the specific offer (of retail work in a unit within a factory) was never put the Complainant. He says that she dismissed the offer out of hand as soon as he raised it and thereafter he did not proceed to precisely inform her what the nature of the job offer was. A precise description of the alternative position should have been documented, in order to prove compliance with section 15, but it was not.

In the absence of this offer being put and the onus under Section 15 is on the Employer to do that, the rescue provision of section 15 does not arise. The Complainant understood the work to be in a location 40 km away from their previous job and she understood the job to be a factory job in a meat processing factory. However regardless of this the Respondent does not deny that no specificoffer of alternative work was made to the Complainant and therefore section 15 does not arise, because it was not used properly.

For this reason, I do not need to consider whether the offer constituted suitable alternative work, because section 15 was not complied with by the Respondent.

Therefore, a redundancy situation existed and no offer of alternative work was made (that met the requirements of section 15.)

CA-00018635-002

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:       1 April 2012

Date of Termination:             10 October 2017

Gross Weekly Pay:                   €330.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy – suitable alternative employment