ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023917

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/11/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance Section 39 of the Redundancy Payments Acts 1967 – 2014, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant refers to a claim for redundancy payment. The Respondent denied the Complainant was entitled to a redundancy payment.

Summary of Complainant’s Case:

The Complainant had been employed by the Respondent as a Restaurant Manager since March 2009. He is one of four former employees of the Respondent making a similar complaint.

The Complainant was told on 24th April 2019 that the restaurant was to be closed because it was not making any money, but the Complainant was not given any indication of a closing date. The Complainant submitted that he was advised that his work would be transferring to a new location where the Respondent also owned a hotel. The Complainant maintained that he expressed his concern to the Respondent that the possible relocation would not work as he was aware of the hotel the Respondent was proposing to move the work location to.

The Complainant submitted that on 3rd May 2019 he was told that the restaurant he worked in was closing and that he would be relocated at a nearby hotel, also owned by the Respondent with effect from 28th May 2019. The Complainant was asked to confirm agreement to the transfer by 20th May 2019. The Complainant maintained that he was given no information about what his role would be at the new venue, or what hours he would be given, or what his rate of pay was to be. The Complainant also had concerns that the work he was to be offered would not have enough hours for an entire shift and accordingly he was concerned that his work hours would be changed dramatically. He was also concerned about the type of work and assumed it may involve bar work and accommodation cleaning which is not what he wanted as he was an experienced Restaurant Manager.

He did not sign the agreement to move and called and wrote to the Respondent seeking redundancy but did not receive a response. On 22nd May 2019 the Respondent called the Complainant and offered him a job at the new location. The Complainant’s solicitor wrote to the Respondent on 23rd May 2019 seeking confirmation that his existing contract of employment still applied, and the Respondent replied on 12th June 2019 that there had been no change.

The Complainant submitted that this was not a satisfactory response as it did not confirm his hours of work or job description so on 14th June 2019 his solicitor again wrote to the Respondent seeking further confirmation. The Complainant advised he received an email response indicating the Respondent was on leave, and no further response was received.

The Complainant then submitted Form RP77 on 5th July 2019 seeking a redundancy payment.

Summary of Respondent’s Case:

The Respondent owns and operates a Hotel (‘the new restaurant’) and formerly operated a separate restaurant (‘the old restaurant’) both owned by the same company. The Respondent advised the Complainant worked for 30-40 hours per week.

In 2019, the Respondent made a commercial decision to stop trading from the old restaurant as it was not profitable. The Respondent wished to transfer the business to the new location, which was within 500 metres of the old restaurant.

On 24th April 2019 the Respondent met with the Complainant and discussed the possibility of the transfer and confirmed that the Complainant would be employed in the new premises and that his hours would not be changed. The Respondent submitted that he required the Complainant’s services there as a restaurant Manager and Hotel Manager, and told the Respondent that his wages would be increased whilst his hours would remain substantially similar, and that food would be served until 10pm.

The Respondent submitted the parties engaged in various written forms of communication both personal and through solicitor’s letters and e-mails. On 3rd May 2019, the Respondent’s HR company wrote to the Complainant indicating that the old restaurant would cease trading and that the Complainant was required at the new restaurant.

On 15th May 2019, the Complainant sent a letter seeking confirmation that he was being made redundant. The Respondent did not reply or confirm this as the Complainant was clearly not being made redundant. On 23rd May 2019, the Complainant’s solicitor wrote a letter to confirm that the Complainant would take up employment at the new restaurant on the same terms. On 29th May 2019 the Respondent emailed the Complainant’s solicitor reiterating that the Complainant was required at the new restaurant. On 14th June 2019, the Complainant’s solicitor wrote again seeking further confirmation, and on 5th July 2019, the Complainant sent an RP77 form to the Respondent, which was not responded to as the Complainant had neither been dismissed nor made redundant.

On 21st August 2019, the complaint was received by the WRC. The Respondent advised that the sole complaint is that the Complainant has not received a redundancy payment. The Respondent denies that the Complainant is entitled to the relief sought.

In a legal submission the Respondent submitted that Section 7 of the Redundancy Payments Act 1967 as amended provides that an employee is entitled to a redundancy payment if he has been dismissed by reason of redundancy. Section 7(2) of the Act sets out five grounds that constitute a dismissal by reason of redundancy. The Respondent contended that in the context of the within proceedings, it would seem that the only two grounds which could apply are section 7(2)(a) and section 7(2)(b).

Section 7(2)(a) provides that when an employer has ceased or intends to cease to carry on business for the purposes of which the employee was employed or intends to cease carrying on business in the place where the employee was so employed. Section 7(2)(b) provides that it applies when the requirements of the business for employees to carry out particular work in the place where the employee was employed are expected to cease or diminish.

The Respondent further submitted that Section 9(2) of the Act provides that an employee shall not be considered dismissed for the reason of redundancy if he is reengaged by his employer for a different employment. The Respondent also referred to Section 15 of the Act which provides that an employee shall not be entitled to a redundancy payment if they have unreasonably refused an offer for new employment by the employer.

In light of the above the Respondent submitted that it did not dismiss the Complainant but that the Complainant chose to not take up the alternative employment at the new restaurant which was close by. The Respondent argued that it is a prerequisite to the Complainant’s entitlement to a redundancy that he must have been dismissed by his employer. It maintained that as a matter of fact, this has not happened and that the Complainant rather chose to refuse the offer of the same employment on even better terms at the new restaurant. The Respondent maintained it is the same corporate entity and the only difference would have been the location of work, which it argued cannot be an issue as the locations were only 500 meters apart..

The Respondent also submitted that even if it is deemed to have dismissed the Complainant, the two most relevant grounds do not apply in the within circumstances. Section 7(2)(a) does not apply as the Respondent did not cease to carry on the business that the Complainant was employed for. As stated above, the Respondent intended to cease the business of the old restaurant but required the Complainant to work at the new restaurant in the same position as he had worked. The Respondent maintained its business was not ceasing, but instead it was being carried out in a different location. The Respondent referred to the fact that the Complainant had specifically stated in his complaint form that he ‘had no issue with the geographical location of [the new restaurant] as the hotel is in the same town’. On this basis the Respondent submitted there was no ground for the Complainant claiming redundancy. The Respondent maintained the Complainant would, in fact, have been materially better off working in the new restaurant.

The Respondent also maintained that in accordance with the provisions of the Act an employee is expected to engage with an offer made by an employer to relocate or to reemploy them in a slightly different capacity. In this case, the only difference between the employment at the old restaurant and the new restaurant would have been the location. The Respondent submitted that it was notable in this regard that the Respondent would have remained the employer of the Complainant at all material times. The Complainant was not being transferred to a new corporate entity. The Respondent contended that an employee is not entitled pursuant to section 15 of the Act to blindly refuse to engage with reasonable offers made by their employer and to insist that their employment has been terminated for redundancy.

The Respondent therefore argued that on the basis of the information submitted and the legal position, the Complainant is not entitled to a redundancy payment as the Complainant chose to leave his employment. The Complainant was offered the same job in a different but extraordinarily close location and unreasonably refused it. It further stated that the Complainant has an obligation to engage with reasonable efforts of his employer to offer him new employment. The Complainant totally failed to do so.

The Complainant also submitted correspondence sent to the Complainant on 3rd September 2019, and after the complaint to the WRC was lodged, confirming the Complainant’s job was still open to him , that he had not dismissed from his position and where the Complainant was urged to confirm he would start his employment at the new restaurant.

Findings and Conclusions:

The Complainant is seeking a redundancy payment. The facts in the case are well set out above.

Central to this case is that the Complainant appeared not accept the Respondent’s position about the proposed transfer to the new location. In the process of the Respondent corresponding with the Complainant about the change of location for his the work the Complainant appears to have reached a conclusion that he had been made redundant and served Form RP 77 on the Respondent.

The Respondent says that at no time did he intend to make the Complainant redundant, that in fact he had ongoing work of a similar nature for the Complainant, and where the Complainant would be in a better situation. On that basis the Respondent maintained the Complainant’s actions amount to an act of resignation.

From the Complainant’s perspective it is noted the Respondent’s actions, by advising the Complainant he was on leave for a period of time during the change process, gave rise for concern in respect of the lack of clarity about the move.

However, the question is whether the grounds for concern apparently held by the Complainant can be seen as a termination of employment on the grounds of redundancy and which entitled the Complainant to a redundancy payment.

Having considered the submissions made and evidence presented I find that a redundancy situation did not exist. In effect the Complainant was offered a similar job in a similar location with continued terms and conditions of employment, albeit the terms may have been better. In this case the Complainant decided to issue a PR77 before moving to the new work location on the basis he had been made redundant. However, as the Respondent had replied to the Complainant to confirm that the Complainant was continuing in employment under his existing conditions of employment, it was not reasonable for the Complainant to have drawn the conclusion that his position was in fact being made redundant.

The Complainant served the RP77 on the Respondent on 5th July 2019 and then referred the complaint to the WRC on 23rd August 2019. It is not clear what happened in between, however, the Respondent again confirmed the fact that the Complainant was still employed in further correspondence to the Complainant from its solicitor on 3rd September 2019.

It is not clear, based on the correspondence between the Complaint’s solicitor and the Respondent, how the Complainant actually concluded his position was being made redundant as it is clear he was being offered similar work at a close by work location that was also owned by the Respondent.

I therefore conclude that the Complainant left the employment of his own accord. On that basis I find there are insufficient grounds to support a case for a redundancy payment on the facts set out above and the complaint fails.

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.

I find the Complainant is not well founded and it is not upheld.

Dated:   14th May 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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