Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self

 Self

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-00035311-001

18/03/2020

The complainant alleges that he was made redundant but did not receive his redundancy payment.

The Complainant started his employment with the Respondent on the 03.04.2017. On or about the 07.02.2020 the Respondent told the Complainant that he was closing the garage in Waterford. The garage did close on the 21.02.2020. The Complainant approached the Respondent and ask him when he would be paid his redundancy. The Respondent told him that he was not entitled to redundancy because he had been offered another job in Clonmel and had turned it down. The Complainant, prior to the redundancy, was never offered another position by the Respondent.

Mr. A when giving evidence stated that everything in the business went through him. He told the Complainant in or around the 07.02.2020 that the business would be closing. Mr. A had been informed in January by the Respondent that he owed the revenue money and he couldn’t pay them, so he had no option but to close the Waterford branch. No offer of alternative employment was made to Mr. A or to the Complainant. The Respondent stated when asked by Mr. A about positions in Clonmel “well I know yourself and (the complainant) wouldn’t work in Clonmel so there is no point in me asking you”

Both Mr. A and the Complainant stated that there was no consultation process prior the business closing. Mr. A was not paid his redundancy either.

Each employee was furnished with a contract of employment and employee handbook. In the contract there is a section that sets out that location flexibility is required.  Employees were aware that they were required to be flexible in relation to the locations they were to work at.  

The Respondent informed the Complainant in December 2019 that the branch in Waterford would be closing but that there was a position available in Clonmel, if he would like to work there instead. The Complainant had worked in Clonmel before but only for a few days. The Respondent offered to provide lifts to and from Clonmel for the Complainant. The Complainant declined the offer.

The complainant brings this claim for redundancy pursuant to Section 39 of the Redundancy Payments Acts.

Section 7 of the 1967 Act states:

 “(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—

( 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 ending on that date.

(2) 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,”

I am satisfied, based on the evidence of Mr. A and the Respondent, that a genuine redundancy situation exited within the Respondent entity at the material time. All parties stated clearly and unambiguously that the business in Waterford was closing for financial reasons. However, the Complainant and the Respondent gave conflicting evidence in relation to the offer of alternative employment. The Complainant stated that no offer of alternative employment was made. That was corroborated by Mr. A. The Respondent stated that the Complainant was offered a position in Clonmel and was offered a lift to and from the branch daily, but he declined it.

 Having carefully considered the evidence of the parties and the Complainant’s witness, I am satisfied, on the balance of probabilities, that the Complainant was not offered an alternative position. Therefore, I do not have to consider the legal position in relation to an offer of alternative employment. I find that the Complainant is entitled to a redundancy payment based on the following facts:

Commencement date: 03.04.2017

Termination date        : 21.02.2020

Gross Weekly salary   : € 230.00

The complaint is well founded. I find that the Complainant is entitled to a redundancy payment.