Complainant

Respondent

Anonymised Parties

A Chef

A Community Services Provider

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-00032415-001

22/11/2019

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

CA-00032416-001

22/11/2019

The complainant submitted two identical claims. Both allege that following the closure of the unit where she worked she was made redundant as the alternative offered was completely unsuitable, but she has not received her redundancy payment. The respondent says the complainant was not dismissed, as required by the legislation and therefore redundancy has not taken place.

The complainant submits that the catering unit where she worked was run by the respondent and for a number of months she had very little work. It was closed on 1 November 2019. She was offered alternative employment but it was completely unsuitable. She went there for 3 days during which it was obvious that she was surplus to needs and she was mainly involved in veg preparation, which is below her grade of chef. She also had difficulties travelling to this workplace.

She instructed her representative to write to the respondent issuing an RP77 form requesting the respondent to issue her redundancy payment. The respondent stated the complainant was not being dismissed and no redundancy arose.

The respondent submits that the complainant was not dismissed and I therefore have no jurisdiction to investigate this claim under the Redundancy Payments Act. Furthermore, when the unit she was working in closed she was redeployed within a 45 kilometre radius, as provided for in the Haddington Road Agreement.

The complainant has not been dismissed. Following a short period when she worked in the new location the complainant went on certified sick leave. Shortly after going on sick leave she met, by agreement, an HR officer on 14 November 2019. A letter sent to the complainant following the meeting confirmed she had not been dismissed, it acknowledged the complainant’s concerns and confirmed that a meeting would be arranged with her new line manager on her return to work from sick leave to consider her concerns.

I have to decide if the complainant is entitled to receive a redundancy payment in accordance with section 7 of the Redundancy Payments Act, which states:

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off or 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, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of F18 [ four years ] ending on that date.”

The respondent claims the complainant has not been dismissed and section 9 of the Act states:

“(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

( a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

( b ) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

( c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.”

The unit where the complainant worked closed on 1 November 2019. On 4 November 2019 she attended a new location for one week and went on sick leave on 11 November 2019. She attended a meeting with an HR Officer on 14 November where she outlined her concerns about the new location and her role within it. A meeting was to be scheduled with her new line manager to look at these concerns as soon as she returned from sick leave. Up to the date of the hearing she had not returned to work.

The complainant argued that in reality there was no role for her in the new location and her contract had been frustrated by the respondent.

Looking at section 9 (a) it is clear to me that the respondent did not terminate the complainant’s contract. Subsection (b) cannot apply as a fixed term contract was not involved. Subsection (c) allows for dismissal to have taken place where the employee is allowed to terminate their own contract because of the conduct of the employer. In this case the complainant considered her new role and location to be unsuitable. The respondent listened to the complainant’s concerns and made a commitment they would be considered. The complainant has not taken the opportunity for that consideration to take place. I cannot predict the outcome of that consideration but I have no reason to doubt the respondent will ensure it takes place when the complainant returns from sick leave. In these circumstances I conclude that the complainant was not dismissed in accordance with section 9 and therefore has no entitlement to a redundancy payment in accordance with section 7 of the Redundancy Payments Act.

CA-00032415-001 and CA-00032416-001

For the reasons given above I find that the complainant was not dismissed by the respondent and has no entitlement to a redundancy payment and I decide that the claims are not well founded.

Redundancy payment – not dismissed