ADJ-00021303

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021303

Parties:

	Complainant	Respondent
Anonymised Parties	A Shop Assistant	A Shop Owner

Representatives

EamonnO'HanrahanE.M. O'Hanrahan Solicitors

Complaints:

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-00028103-001	30/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00028103-002	30/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028103-003	30/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028103-004	30/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00028103-005	30/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028103-006	30/04/2019

Date of Adjudication Hearing: 10/07/2019

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints / disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints / disputes.

Background:

The complainant commenced employment as a shop assistant with the respondent on 17^th May 2013. The complainant lodged a complaint with the WRC on 30^th April 2019.

At the outset of the hearing it became apparent that the name of the respondent initially used by the complainant when filling out the complaint form was incorrect. The respondent was agreeable that the name should be amended.

CA-00021803-001 Complaint under the Redundancy Payments Act, 1967.

Summary of Complainant’s Case:

The complainant submits that he was employed on a part time basis by the respondent from 17^th May 2013 until he was made redundant on 7^th November 2018. The complainant worked two days per week, working evenings/nights on Fridays and Saturdays. According to the complainant this pattern of work has been in place since November 2014. The rate of pay was €9.80 for the hours from 8 P.M. until midnight and €12.00 per hour from midnight on. The complainant submits that the respondent closed down the shop where the complainant was working on 7^th November 2018.

The complainant submits that the respondent offered him work in another shop verbally, but this work was based on working from 7 A.M. to 5 P.M. and did not specify which days of the week the complainant was to work. The complainant had contractual obligations to other employers which meant he could not avail of employment with the respondent outside of Friday and Saturday evenings/nights. The alternative offered by the respondent was not viable for the complainant as it would have resulted in the loss of this other employment.

In direct evidence at the hearing, the complainant submitted that he had received a text message from the respondent telling him that he was closing the shop at 6 P.M that day which meant the complainant only got a couple of hours’ notice. The text did not include any explanation regarding the closure.

The complainant stated that he would have accepted a move to another shop if the offer was for the same hours as he had other work commitments.

The complainant submits that the respondent cannot make unilateral changes to his Terms & Conditions of Employment and that the offer made could not be deemed as suitable alternative employment; in effect the complainant had been made redundant.

Summary of Respondent’s Case:

In his submission the respondent explained that he had to the shop in question on 7^th November 2018 as it had become unsustainable.

The respondent submits that the complainant had worked in another sister shop from March 2011 until December 2014. From January 2015 until the closure he worked Saturday and Sunday evenings/nights in the now closed shop. The respondent was of the view that the complainant would simply transfer back to the shop he had worked in previously. The respondent submits that he offered the complainant the alternative position on a number of occasions, but the complainant turned down the offer. The respondent submits that the complainant’s contract of employment obliges the complainant to be flexible regarding working location.

In direct evidence at the hearing, the respondent stated that he had made many attempts to discuss the situation with the complainant but had been rebuffed whenever he attempted to set up a meeting. He also stated that he had offered the complainant work on Fridays, 06.45 A.M.-5.00 P.M. and Saturdays 9.00 A.M.-5.00 P.M. in the other shop.

Findings and Conclusions:

I am being asked to decide whether the offer of work made by the respondent to the complainant was suitable work? In a UK case of Executors of Everest v Cox [1980] ICR415, the need to take account of the employees’ subjective perception of the alternative job must be considered:

The employee’s behaviour must be judged from her point of view based on the facts as they appeared, or ought reasonably to have appeared to her at the time the decision had to be made

In all of this I must consider the wording of Section 15 of the Act

Disentitlement to redundancy payment for refusal to accept alternative employment.

15.— (1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of F34 the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section. (2B) Where —

(a) an employee’ s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer,

such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

In this case, the complainant explained that he had worked from 7.30 P.M. to 4.00 or 5.00 A.M. on Friday and Saturday nights, for at least two years and 10 months. In a sample period of 26 weeks from 27^th April 2018 to 19^th October 2018 he worked a total of 19 shifts. He never worked Mondays, Tuesdays, Wednesdays or Thursdays. The offer made to him when the shop he was working in closed abruptly was to work Monday to Friday during daytime hours. Considering the complainant’s established pattern of work, I find this offer did not amount to a suitable alternative arrangement, particularly in the light of the fact that the complainant had other employment.

I therefore find that the complainant was made redundant and is entitled to a redundancy payment based on the following criteria:

Commencement: 17 May 2013

Date of dismissal: 7 November 2018

Gross weekly wage: €174.40

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The complaint is well founded, and I direct the respondent pay the complainant a redundancy payment based on the above criteria.

CA-00021803-002 Complaint under the Terms of Employment (Information) Act, 1994.

Summary of Complainant’s Case:

The complainant submits that he was never given a contract of employment, in clear breach of the Act.

Summary of Respondent’s Case:

The respondent submitted that all his employees have contracts of employment, but he was unable to locate the contracts at the time of the hearing.

Findings and Conclusions:

I find the complainant was not issued with a contract of employment. I find the respondent breached the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint is well founded and I order the respondent pay the complainant €500.00 for this breach of the Act.

CA-00021803-003 Complaint under the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The complainant submits that he was due two days holiday pay when his employment ended; these were never paid to him.

Summary of Respondent’s Case:

The respondent did not disagree with the complainant in this matter and agreed he would pay the outstanding two days’ pay.

Findings and Conclusions:

I find the complainant did not receive his full holiday entitlements and is due two day’s pay.

Decision:

The complaint is well founded, and I order the respondent to pay the complainant two day’s pay as per his entitlement.

CA-00021803-004 Complaint under the Organisation of working Time Act, 1997.

This complaint is a duplicate of CA-00021803-003 above and was withdrawn at the hearing.

CA-00021803-005 Complaint under the Unfair dismissals Act, 1977.

This complaint was withdrawn at the hearing.

CA-00021803-006 Complaint under the Minimum Notice & Terms of Employment Act, 1973.

Summary of Complainant’s Case:

The complainant submits that the notice given to him was a text message on 7 November 2018, stating that the shop he was working in would be “closed at 6 P.M. today” and that such notice does not comply with statutory requirements; no payment in lieu of notice was forthcoming. As the complainant had worked for the respondent for seven and a half-years, he was entitled to four weeks pay in lieu of notice.

Summary of Respondent’s Case:

The respondent submits that he would have spoken to the complainant about the situation but that the complainant was never available to meet with him.

Findings and Conclusions:

I find whereas the complainant was due four weeks’ notice, he did not receive any notice or pay in lieu of notice. I find the complainant is due four weeks’ pay in lieu of notice.

Decision:

The complaint is well founded. I order the respondent to pay the complainant four weeks’ pay.

Dated: September 23^rd 2019

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Suitable alternative employment, hours of work, contract of employment, notice.