Complainant

Respondent

Anonymised Parties

Services Manager

Data IntegrationService 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-00033912-001

21/01/2020

The complainant’s representative submitted as follows:

The complainant "BR" commenced employment with the respondent employer on the 24th. of April 2012 working 5 days a week on an annual salary of €40,000. For family reasons he requested a 4-day week which was granted in September of 2016 on a salary of €50,000.00. At the time of dismissal due to redundancy BR was working a 4-day week at an annual salary of €50,000.00.

His role at the date of dismissal was Managed Services Manager.

In the months leading up to March of 2019 and specifically on 0r about the 4th. of March 2019 and the 7th. March 2019. BR was called to meetings with S.Q. , HR Advisor- to the respondent employer

and informed that his position as Managed Services Manager was to be made redundant. He was informed the role was to be restructured and transferred to the Madrid Office of the respondent employer.

During the course of these oral discussions in early March of 2019 the respondent employer offered BR 4 alternate roles in total, initially two

roles: -

(i) Receptionist - full time — 5 days at €24,000.00 pa

(ii) Customer Experience Rep — full time — 5 days at €22,000.00 pa

Subsequently 2 further roles were offered: -

(iii) Validation Engineer — fulltime - 5 days at €30,000.00 pa working in L

(iv) Level 1 Engineer — fulltime 5 days at €40,000.00 working on site

(i.e. at the customer's site in Rk) or in L head office.

On the 13th of March 2019 the respondent sent a letter to BR referring to the discussions on the 4th and the 7th of March 2019 and confirming that the position of Managed Service Manager would become redundant and that the employee's employment with the company would terminate on the 5th of April 2019. The letter made reference to a consultation process in an effort to  find an alternative to termination of employment and set out the 4 roles referred to above. The correspondence went on to indicate that if BR choose “to accept this offer of alternative employment he would not be dismissed by reason of redundancy".

It was indicated that any new role would start on or before the 8th April 2019 and that continuous employment would be maintained, and that the employee would “NOT” be entitled to a redundancy payment. A trial period of 4 weeks was also mentioned as is required by the legislation and BR was required to make a decision as to whether he was accepting the alternative employment as Level 1 Engineer or whether he was selecting statutory redundancy.

BR never formally replied to this letter. During this period a position with a third-party company was mentioned by the employer, contact was made and interviews arranged. BR attended for interviews with this third-party company on the 15 March 2019 and again on the 26th. of March 2019.

0n the 20th of March 2019 the respondent employer extended the

deadline for responding to the 1etter of the 13th of March 2019 requesting a decision on alternate positions/statutory redundancies.

On the evening 0f the 26th. of March 2019 BR received a formal job offer from the third-party company.

 The next day on the 27th of March 2019 the employee approached the HR Manager of the respondent employer and told him about the job offer and the period of notice required was discussed.

It is BR’s evidence that the HR Manager Mr S.Q. approached

him in person after this meeting and asked BR to send an email to him setting out what they had discussed.

BR returned to his desk and forwarded an email at 11.32am

 to the HR Manager advising him that he “wished to formally

depart from the respondent company as discussed” and wished to commence employment with his new employer on the 8th.April and requested an abridgement of contractual notice.

On receipt of this email the HR Manager replied by email

 indicating that the company was happy to waive the 4 weeks

notice period and suggested BR finish up the next day, the 28th. of March 2019.

By further email of the 27th of March 2019 BR emailed

 the HR Manager and indicated he was happy to finish working the following day.

BR finished working with the respondent employer on the 28th. of March 2019. An agreement was produced by the

employer requesting the complainant’s signature and mentioning resignation by the employee effective on the 28th.of March 2019. This agreement was not signed by the employee.

SUBMISSION:

WAS THERE A REDUNDANCY?

Complaint under the Redundancy Payments Act 1967 (the 1967 Act)

Under Section 7 of the 1967 Act as amended by Section 4 of the

Redundancy Payments Act 1971 and Section 5 of the Redundancy

Payments Act 2003 there must be a dismissal for a redundancy to arise.

Section 7(1) provides that:

 7.— (1) 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…

Section 7(2) provides that:

(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,

It is submitted that BR can establish dismissal by reason of redundancy by virtue of his oral evidence of events leading up to and including the meetings of the 4th and 7th of March 2019 and in particular arising from the contents of the letter dated 13th. of March 2019.

 That letter dearly states that the role of Managed Service Manager would become redundant and the employee’s employment would terminate on the 5th of April 2019. Thereafter a number of alternative roles were outlined, and an option was given to choose to accept the Level 1 Engineer role as suitable alternative employment.

 The final paragraph of the letter states as follows: -

“If you choose to accept this offer of alternative employment you will not be dismissed by reason of redundancy."

It is BR's case that this letter of the 13th of March 2019 amounts to BR being put on further notice that he was being dismissed by reason of redundancy and his employment would terminate on the 5th April 2019 unless he accepted one of the alternative positions. BR did not ever accept one of the alternative positions and therefore his role was made

redundant.

FAILURE TO NOTIFY 0F AMOUNT OF REDUNDANCY PAYABLE:

Section 19 provides:

19.— (1) Upon the dismissal by reason of redundancy of an employee who is

 entitled under this Part to redundancy payment, or upon the termination by such

an employee in accordance with section 12 (2) of his contract of employment,

his employer shall pay to him an amount which is referred to in this Act as the lump sum.

The respondent employer did not inform BR of the amount of redundancy payment he would be entitled to arising from the redundancy.

WAS THERE A RESIGNATION?

As regards the email of the 27th of March 2019 which the respondent employer claims amounts to a resignation {which is denied), BR will contend this did not alter his position because at that point, he had already been dismissed by reason of redundancy.

WAS SUITABLE ALTERNATIVE EMPLOYMENT UNREASONABLY

REFUSED?

If it is submitted by the emp1oyer that BR unreasonably refused the offer of alternative employment (which is denied) BR will contend that the alternate role of Level 1 Engineer referred to in the letter of the 13th. Of March 2019 was NOT a suitable alternative employment because it meant in effect that BR would be working an extra day a week, a problem in light of his stated family reasons for seeking the 4-day week in 2016 and in addition, taking a pay cut of 36% on a daily rate basis.

The complainant’s representative advanced that the company letter to the complainant of the 13th.March 2019 clearly stated that the complainant’s position of Managed Services Manager will be made redundant. He referred to the terminology contained in the letter and in particular the following paragraphs:

“If you choose to accept this offer of alternative employment, you will not be dismissed by reason of redundancy. The new role will start on or before April 8th.You will maintain your continuous employment and you will not be entitled to a redundancy payment …

As the new role is different from your original position, you will be entitled to a statutory trial period of four calendar weeks. If the trial period is unsuccessful, from either the company’s or your perspective you will be treated as having been dismissed by reason of redundancy on the date your original role was terminated, as stated above”.

In his direct evidence, the complainant asserted that the respondent’s offer involved a new contract on probation and a lower salary. He set out the various engagements  with the HR manager after discussing the opportunity offered by Company B – the complainant stated that when he advised the HR manager of his intention to take up employment with Company B , the HR manager asked him when he wanted to leave .He was asked to confirm in writing to HR what had been discussed .He stated that he said to the MR.SQ “ I assume I am getting redundancy “ and the HR manager replied that’s not what is happening and he sent the complainant a  waiver document to sign .It was submitted that this was never signed by the complainant.

It was put to the complainant under cross examination that he wanted to have his cake and eat it. It was contended that the complainant was given a number of options and that the HR manager had put him in touch with company B to explore alternative career paths. It was submitted that Mr.SQ had gone out of his way to assist the complainant. In response, the complainant stated that it was not clear to him that he would be foregoing his redundancy – he said the role of engineer was not suitable and involved a probationary period – the complainant stated it was a complete change in circumstances with a probationary period and a drop-in salary. It was put to the complainant that he had never said no the alternatives offered by the respondent, he had not rejected them, and he admitted that he did not tell the respondent that he was unhappy with their offer.

The complainant said that it was his understanding that the engineering post was a trial arrangement, that it was a new job and if the company were unhappy, he could be let go after a month.

He said that he did not say that “I am not taking the engineering job”, he said he was looking for another position and that the HR manager had told him that the engineering job might not materialise. The complainant said that based on his experience with other companies it was his understanding that he would get a redundancy package. He understood he would be going to a completely different job with a drop-in salary.

The respondent ‘s representative denied that there had been any breach of the Act and asserted that the correspondence between the parties  that was  submitted into evidence supported their contention that the complainant had been offered reasonable alternative employment but had chosen to take up employment with Company B and consequently a redundancy did not arise as the complainant resigned from the respondent company. It was advanced that the complainant had failed to produce any evidence of being unhappy with the alternative employment  offered to him – it was contended that his dissatisfaction with the alternatives offered to him were only raised after he had resigned from employment. The complainant had never said no to the engineering position he had been offered .

In his direct evidence Mr.SQ set out the chronology of exchanges and meetings  with the complainant- he suggested that the complainant was aware for a number of months that his position was being made redundant – he stated that he endeavoured to assist the complainant with exploring all options and he got permission from the complainant on the 19th.March 2019 to share his CV with Company B.

It was put to MR.SQ under cross examination that he asked the claimant to send an email without telling him the implications of doing so. Mr.SQ stated that the complainant had accepted the position with Company B at this time and that he resigned at this point. Mr.SQ asserted that the complainant would not have had to start the engineering job in a greenfield situation and would not have had to undergo a probationary period. Mr.SQ undertook to furnish the WRC with the contract on offer for the engineering position with the respondent. The HR manager confirmed that he asked the complainant for a letter following the discussion about the start date – Mr.SQ said that after submitting the letter the complainant raised the matter of redundancy the  following day- the 28th.March – Mr.SQ said that he explained to the complainant why redundancy did not apply and that he appeared to accept his explanation. The HR manager advised that the complainant’s job was moving to Spain and that he had no control over that. He said that there was no question of the complainant losing his existing terms of employment. It was submitted that just because someone was taking a job elsewhere did not mean that they were entitled to redundancy. It was submitted that the complainant did not complete the RP7 because he had got another job.