Complainant

Respondent

Anonymised Parties

Waiter

Restaurant owner

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-00029892-001

25/07/2019

The complainant seeks a statutory redundancy payment in accordance with section 7 of the Redundancy Payment Acts 1967-2014.

The complainant worked as a waiter with the respondent from 21 March 2015 up until his redundancy on 1 June 2019.

He earned €507.93 per week for which he worked 45 hours.

He submitted his complaint to the WRC on 25 July 2019.

The respondent submits that the respondent named on the complaint referral form was not the complainant’s actual employer. The respondent requested that the complaint referral form be amended to reflect the correct name of the complainant’s employer.

The complainant agreed to correct the Respondent named on the complaint referral form.

I must first decide whether the respondent named on the complaint referral form can be changed to the correct name of the complainant’s employer.

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

In County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

I further note that there is no dispute about whether the complaint is properly before the WRC and that the correct respondent has submitted to the jurisdiction of the WRC. I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name as requested.

Accordingly, I am prepared to accede to the respondent’s application to amend the name of the employer on the complaint referral form.

The complainant worked with the respondent from 21 /3/ 2015 -31 /5/2019.

The respondent wrote to the complainant on the 16 May notifying him of the impending closure of the restaurant on the 31 May 2019 and offering him a job in one of their other cafes.

The claimant accepts that a genuine redundancy existed but submits that the alternative role on offer differed from his current role. He declined to accept the respondent’s offer of the job in the café. The new job was in a café compared to a restaurant with a 4.5-star rating and waiter service. In the new role he would have to work in a different location, man the cash machine and clean tables. But more importantly, he would forfeit €170 a week in tips.

As a qualified waiter he applied for a job in a restaurant in 2015. A cafe job is not a suitable alternative for him. He did not want to change his lifestyle.

He advised that one other employee who did not agree to the respondent’s offer received his redundancy payment in full.

He seeks payment of his statutory redundancy.

The Respondent declined to pay him statutory redundancy arguing that he is not entitled to same as he had unreasonably refused an offer of suitable alternative employment.

The respondent directors decided to wind up the company. They offered the complainant what they deem to be an alternative suitable role as a front of house supervisor in a café owned by their company. They considered him to be a very valuable employee whom they wished to retain in another part of their business. The complainant was offered the same role of front of house supervisor, earning the same rate of €12 per hour and working the same hours per week. While the existing restaurant is a table service restaurant, the café is self-service, includes a deli and a carvery, but was established over 25 years ago and enjoys a reputation which matches that of the restaurant where the complainant worked. The clientele and menu in the café are similar to that found in the breakfast/ lunch shift in the restaurant on which the complainant mainly worked. The role in the cafe would mirror his role in the restaurant, namely;

greeting customers, helping customers choose from the menu,

dealing with issues or complaints,

being a team leader and supervising other staff,

liaising with owners, managers and suppliers,

taking payment using and closing bills.

The café is equidistant with his existing place of employment from his home.

In relation to the other employee offered redundancy, it was the case that that employee, a chef, would have lost €5000 per annum on his salary had he accepted the offer of alternative employment. No such loss arises for the complainant. The respondent accepts that the complainant earned €170 per week in tips but submits that tips are not reckonable for redundancy payments nor are they considered wages under the Payment of Wages Act, 1991. Tips are not paid through the payroll but are paid by customers, in cash, to staff as requested by the respondent. The respondent does not accept that the loss of tips was a reasonable basis to refuse the alternative role.

The respondent offered the complainant a supervisory role in their café. The complainant refused the offer. The respondent submits that section 15 (2) of the Redundancy Payment Act 1967 disentitles the complainant to redundancy payment as he was offered “suitable employment “and he has “unreasonably refused the offer”.

The only matter in dispute between the parties and the only matter upon which I must decide is the reasonableness or otherwise of the complainant’s refusal to accept the respondent’s offer of an alternative position. The respondent declined to pay him redundancy contending that he is not entitled to same as he had unreasonably refused an offer of suitable alternative employment.

Relevant Law.

Disentitlement to statutory redundancy payment. Section 15 provides as follows;

“15 (2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of his dismissal

(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”

The complainant did receive an offer of employment within the period of two weeks ending on the date of his dismissal. While the new job was in a different location, the offer approximated the terms of his previous contract with the restaurant except for the loss of tips amounting to €170 per week

The reasonableness of a refusal to accept suitable alternative employment was considered by in A Former Project Co-Ordinator v A Utility Services Company, ADJ -00006833. That decision examined the refusal of an employee whose two-year fixed term contract had expired to accept a further one-year fixed term contract. His refusal was based on his belief that the renewed contract offered less security. That respondent declined to pay him redundancy contending that he was not entitled to same as he had unreasonably refused an offer of suitable alternative employment with its Parent Company. The Adjudicator commented that in interpreting the concept of reasonableness as provided for in the Act of 1967, “cases from the Irish employment fora .. appear to turn on their own particular facts. “

She observed that

“the English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of ‘the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view’. In this respect, I note that the Irish employment fora have consistently applied a subjective test to the reasonableness of an employee’s refusal of alternative employment.

Taking that complainant’s perspective into account and using the subjective test, the adjudicator found that it was reasonable for that complainant to refuse the offer of a further 1-year fixed term contract offered as it offered a lesser form of security than that offered by his 2 -year(expired) fixed term contract.

Just as an entitlement to the provision of a replica fixed term contract upon the expiration of the first contract is not a contractual entitlement, neither is an entitlement to tips amounting to €170 a week. But using the subjective test in the instant case, the complainant’s unwillingness to forego tips amounting to €170 per week was not unreasonable.

I do not find that the complainant has unreasonably refused the offer of suitable alternative employment. I do not find that section 15 of the Act of 1967 assists the respondent.

I find that the complainant is entitled to payment of statutory redundancy in accordance with section 7 of the Act of 1967.

Based on the evidence before me I am satisfied that the complainant was in employment with the respondent since 21 March 2015. I find that his employment terminated on 31 May 2019 by reason of redundancy.

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2014 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     21 March 2015

Date of Termination:               31 May 2019

Gross Weekly Pay:                     €507.93

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

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2014 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:       21 March 2015

Date of Termination:             31 May 2019

Gross Weekly Pay:                   €507.93

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

Refusal to accept reasonable alternative employment