ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026100

Parties:

	Complainant	Respondent
Anonymised Parties	A Driver	A Haulage Company

Representatives

SIPTU

Hugh Hegarty Management Support Services (Ireland) Ltd

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00033053-001	13/12/2019

Date of Adjudication Hearing: 14/02/2020

Workplace Relations Commission Adjudication Officer: James Kelly

Procedure:

In accordance with 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.

Summary of Complainant’s Case:

The Complainant is seeking payment of his statutory redundancy of €29,400 on the basis of €600 per week plus a bonus week and that he worked for 24 years in total.

The Complainant said that he has served with the previous owner and following a transfer of undertaking was working with the Respondent as a driver for some 24 years at the point of his redundancy.

The Complainant said that although his employment contract states that his place of employment is Ireland, he at all times collected his truck close to his home and then drove to where he was required to work. He was on the same site for 23 years and returned home that evening. However, following as incident at work, the only offer of work from the Respondent is that he would first have to drive to Dublin to collect his truck, and to return the truck back to Dublin each evening after work before he then returns home. The Complainant maintains that amounts to a round trip of 380 miles each day, an additional 15.5 hours driving time per week just to get to and from work and an additional cost to him of €180/€200 per week. This he claims is an unreasonable and unfair alternative employment offer.

The Complainant said that under the Redundancy Payment Acts, 1967-2014 he is entitled to a redundancy payment because he was placed on lay-off for a period of four or more consecutive weeks and/or for a period of six weeks or more in a period of thirteen consecutive weeks. He claims that his situation falls into that bracket.

The Complainant said that he submitted his RP9 -notice of seeking to assert his right to redundancy-, on 19 November 2019 in respect of lay-off within the meaning of Section 12(1)(b) of the Acts. The Complainant said that the Respondent had not presented him with a reasonable alternative for work, as he was now expected to travel an additional 380 km per day to start and finish work at a substantial additional cost per week. The Complainant said that he has always made himself available for meaningful work and he is being punished by the Respondent for something he did not do.

The Complainant said that the Respondent has not offered him any alternative work since the end of June 2019. The Complainant stated that when he sent his RP9 notification the Respondent stated that he was on temporary suspension due to “unavailability of work” and the Complainant wishes to rely on this for his claim to redundancy. He said that no offer of employment within a reasonable distance surmounts to redundancy.

The Complainant claims that he had been working on behalf of the Respondent at a client’s site close by for approx. 23 years. He said one evening having left his truck at this site he noticed that he had left his phone in the truck and decided to retrieve it later that evening; he drove onto the site in his private car with his partner. He had borrowed an access fob from the night driver to access the site. He was stopped by the security guard who told him that he was not allowed on the premises. The client raised a concern regarding the unauthorised access by the Complainant and sought an investigation. The Complainant said that he was suspended without pay while the case was investigated. He said that the investigation found that he was not involved in anything sinister, just collecting his phone. However, the client said it did not want the Complainant on its site any longer.

The Complainant claims that the Respondent said that the only work available was to travel to Dublin to collect a truck and take up his driving assignment for the day and return the truck to Dublin before he could go home. The Complainant said that was an unrealistic alternative and nothing more has been offered since that time.

The Complainant cited the following in support of his case; ADJ-00020568 where the objective test considered was the distance from his regular employment for alternative employment and the additional cost incurred. Also EAT case no: RP563/2013, where it was found that an employer failed to offer further work and had to pursue redundancy via filing a RP9.

The Complainant said in all his years with the Respondent he never caused any difficulties or caused any wrong and even in the case that led him to be removed off a client’s site he had done nothing wrong and was never sanctioned.

Summary of Respondent’s Case:

The following is a summary of the Respondent’s evidence.

The Respondent claims that the Complainant is not properly laid off within the meaning of layoff under the act and he is therefore is not entitled to a redundancy payment on foot of his RP9 form.

The Respondent said that the Complainant began his employment in or around January 1996 and transferred to it under a transfer of undertakings. It said that he had primarily operated as a “shunter driver” for it on a third-party client’s site for the last number of years.

The Respondent said that on 24 June 2019 the client contacted it to say that the Complainant had been driving around the Site outside of working hours late in the evening with his partner in a private vehicle and had been approached by the security guard and told they had no authorisation to be there. They requested a full investigation.

The Respondent said that it asked the Complainant what had happened and found out that he had returned to the truck on site to retrieve personal belongings. However, the client said that it did not want him back on its site and de-activated his security access card. The Respondent met with the client and tried to get a solution to allow the Complainant to return to work on the site. The Respondent said that the Complainant was advised that it had work available for him in Dublin while this was being discussed with the client to see if it could be sorted out. However, the Complainant said he would “leave it” as he was going away on holidays that week.

The Respondent said that it received a letter from the Complainant’s Trade Union a day later claiming that he was ‘suspended’ and asking when he would be returning to work. The Respondent said it replied saying that he was not suspended, that he was told he could work in Dublin while it tried to resolve the issue with the client, and it would be conducting a full investigation. The Respondent said that after a number of attempts by it to carry out an investigation, as dates did not suit the Complainant, it finally managed to arrange a meeting on 4 October and a final investigation report issued on 13 November 2019. The Respondent said that no disciplinary action was required or was initiated. The investigation report was sent to the client, but it failed to convince them to lift the Complainant’s ban. The Respondent said the work is still there, it has to be done and this is not a redundancy situation.

The Respondent said that on or about 28 November 2019 the Complainant sent it a RP9 indicating his intention to claim a redundancy lump sum payment following ‘lay off’ or ‘short time’ situation. The Respondent replied on 29 November stating that the Complainant was not on a lay-off situation and is therefore unable to claim the redundancy payment. It said that it explained to him that it was not a situation that there was no work, but rather, he is unable to access the client’s site due to its ban and there was an open offer in its other site in Dublin, as alternative work for him. It does not generally have any other work.

Legal Position

The Respondent said in conclusion that it accepts that the Complainant was unaware that he had created a security breach at their clients side and the possible consequences. It carried out a full investigation and no disciplinary action was deemed necessary. The Respondent points to the Complainant’s contract of employment which states that his place of employment is “in Ireland in accordance with employers’ instructions”.

The Respondent said that the Complainant’s position does not qualify as a Lay-off under Section 11(1) of the Redundancy Payment Act 1969, nor does the Complainant’s position fall within the definition in Lay-off by the Department of Enterprise, Trade and Innovation in relation to the RP9 form. The Respondent said what is clear form both definitions is that there is a “no available work” requirement and that is not the situation here. There is work available. There is work available on the client’s site, but the Complainant is banned, and he cannot take up that work.

The Respondent said that this is a case where the Complainant cannot any longer be available for the work that the Employer is supplying and therefore the Complainant’s position does not fall within the definitions of lay-off in the Act, nor does the issuing of the RP9 form require the Respondent to either issue the Complainant’s redundancy or in fact supply work.

The Respondent said that it has been established that the conduct an employee on a third parties’ property can have consequences for him working with the third party. It said that the Complainant cannot work on the site because of his loss of security access, but there still remains an availability of work. Therefore, it said that the Respondent can supply the work, but the Complainant cannot avail of it, and therefore this does not qualify as lay-off under the Redundancy Payment Act.

Findings and Conclusions:

The Relevant Legislation

Section 7(1) of the Redundancy Payments Acts 1967-2015 provides: “An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . .”

Section 7(2) of the Acts as amended further provides that:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Lay-off and short-time.

11 — (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where —

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

I note that it was held by the Employment Appeals Tribunal in the case of St. Ledger v Frontline Distribution Ireland Ltd [1995] E.L.R. 160 when considering the statutory definition of “redundancy” that: “Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned’. Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers”.

I have heard the submissions of the parties at the hearing and considered the written submissions.

Many of the facts of the case are not in dispute. The Complainant had worked as a driver for the Respondent for circa. 24 years and there were no issues with his conduct. The Complainant worked primarily from the same base and servicing the same client on behalf of the Respondent during that time. I have heard the facts surrounding the reason the client decided they did not want the Complainant working on its site any longer. I have heard that the issue was investigated, and the Respondent found nothing as to his behaviour that required it to discipline him. The Respondent said that it has tried to plead the Complainant’s case to resume his employment at the client’s site, but the client is refusing to allow him return to the site.

The main issue for consideration is the legal matter of entitlement to redundancy or not.

The Complainant has not claimed to be dismissed. The Respondent likewise has said that it has not dismissed him. I note Section 7(2) of the Acts and the 5 situations where redundancy would be deemed to exist. On the basis that the Complainant was not dismissed nor falls into any of those categories I am satisfied that Section 7(2) does not apply in this case.

The Complainant claims that he was placed on ‘lay-off’, the meaning of which is set out in section 11 (1); namely, where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The Complainant said it wishes to rely on the Respondent saying that he was “suspended” without pay while the case was investigated and that constitutes layoff. Whereas, the Respondent said that the Complainant was never suspended while the investigation was ongoing. It said that arrangements were made for him to slot in at its only other available work which was in Dublin, but he refused to do that as he was going on holidays. The Respondent points to a letter dated 27 June following this matter up.

I have considered the matter and the evidence from both sides. I prefer the evidence from the Respondent on this issue. It is clear that at least the Respondent’s understanding of the Complainant’s position was clarified as of 27 June, a matter of just a few days after the trespass event on the client’s site, and while he was on holidays and not due to be in work. I note that the Respondent claims that the delay in carrying out the investigation and the report on that is down to the Complainant’s side and I have not heard any evidence to challenge that.

I note the two parties hold different views to as to whether the Complainant was placed on lay off. The Complainant claims that the Respondent did not provide him with suitable work since 24 June 2019 and this amounts to lay off. The Respondent said that it has ample work, but the Complainant cannot access the site where that work is. His job is ongoing and has to be covered by others. He cannot access the site because his security pass is not authorised. The Respondent said that the Complainant was never placed on layoff or made redundant and that his situation does not qualify him under the definitions of the act. Having reviewed the two definitions of lay-off, I am not satisfied that the Complainant’s situation falls within those definitions. I find that this is not a redundancy situation as defined by the Acts.

I am satisfied that the Respondent has work and is willing to provide the Complainant with that work, but the Complainant in this instance is unable to do the work for which he is employed.

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 that the claim is not well-founded having regard to all the circumstances of this case and dismiss the claim.

Dated: 29th May 2020

Workplace Relations Commission Adjudication Officer: James Kelly

Key Words:

Redundancy Payments Acts – access clients site – offered work - dismiss the claim