Complainant

Respondent

Anonymised Parties

A Manager

A Valeting Company

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-00038602-001

09/06/2020

The Complainant is seeking his entitlement to a redundancy lump sum payment.

The Respondent said he is not entitled to same as he refused an offer of alternative work.

The following is a summary of the Complainant’s case.

The Complainant started his employment with the Respondent in March 2016 initially as a car valeting operator and moved into a manager’s role following an accident where he injured his hand in 2016, which prevented him from doing any heavy work.

He claims that Mr. A, the Respondent’s owner, told him that his place of work was closing on 21 February 2021. He said there were general discussions about how business was going but no formal meetings, and no alternatives discussed.

He said that he approached Mr. A to ask him about his redundancy. However, Mr. A told him that he was not entitled to redundancy because he had been offered another job at a different location, some 50km away and he had turned it down.  

The Complainant said he never really worked in the Respondent’s other valeting business, only to cover three times in the preceding 4 years. He said that he never refused to work there. However, he would have to drive there, and he had no car or proper transport connection to get to work there. The Complainant said that no real offer of alternative employment was made to him. He said that the Respondent simply said, “I know you won’t work in (other location) so there is no point in asking.”

The Complainant said that when he sought his entitlements from Mr. A, it turned into a heated exchange where Mr. A said that he would not be paying redundancy and he would be relying on the “mobility clause” in the Complainant’s contract of employment.

The Complainant said that his job was made redundant in the place of work and that an alternative position was not offered and had it been offered, it was not a suitable alternative.

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

Mr. A is the owner of the Respondent and was present at the hearing to give evidence. He said that he had spoken to the Complainant a number of times about the business difficulty.

He said that the Complainant was given his contract of employment and within that contract of employment there was a Job flexibility clause requiring him to transfer to “other alternative departments and duties within our business”.

Mr. A said that he offered the Complainant to transfer down to the other location and that he had organised a lift with another employee who would pick up the Complainant each working day and drop him home in the evening. He said that the Complainant would be doing the same duties he had in the other location. However, the Complainant refused to take up the offer. Accordingly, as far as the owner was concerned there was no redundancy situation as the Complainant turned down a reasonable offer.

At the hearing Mr. A said that the Complainant only worked for 16 Days in 2016 and only one day in 2017. However, the supporting documentation provided to the WRC post hearing did not support that position.

The Law

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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…

From the evidence before me, I find that the Complainant was in employment with the Respondent since end of March 2016 and he finished up on 21 February 2020.

I note for the material/records sought from the parties and that were presented to me post hearing that the Complainant was paid from the 13th working week in 2016 and worked without any notable break in service until the business closed in February 2020. Therefore, I am satisfied that the Complainant had no significant break in service as was suggested by the Respondent at the hearing.

I note the level of communication and engagement between the Respondent and its employees in the centre that was under threat of closure. I am satisfied that it was far from ideal and although there is no actual legal requirement to communicate for individual redundancies under the Redundancy Payments Act 1967, there is a substantial amount of case law and common sense which would point to best practice in such a situation, where proper communications and clarity should be to the fore.

There is a direct conflict of evidence between the parties as to the alternative job offer that the Respondent said was made to the Complainant, but that he turned it down; and the Complainant said that the offer was not made, but rather a remark was made in passing, that he would not even take up the offer of moving to the other location even if he was offered.

I note that the Respondent’s other business was not the Complainant’s usual place of work and I have noted from the evidence that there was a lot of valeting work to be done there, but I am not convinced of the Complainant’s role transferred there so readily, since he could not do any heavy valeting work and he had a somewhat different role.

Also, from the evidence adduced there is a lack of documentary evidence to support that the Respondent was seeking to move the Complainant to his other business some 50 km away. I am satisfied that any mention of the mobility/flexibility clause in the Contract was not to the fore in the communication between the two parties until well after the business had closed.

Accordingly, on the balance of probability, I prefer the Complainant’s evidence here as it remained consistent throughout.

I find that the Complainant was dismissed by reason of redundancy.

I find that, pursuant to the Redundancy Payment Acts 1967 -2012, the Complainant is entitled to a statutory redundancy.

I decide that, pursuant to the Redundancy Payment Acts, the Complainant’s case is well founded, and he is entitled to a statutory redundancy lump sum payment calculated as per the following criteria:

Date of commencement of employment: 27 March 2016

Date of notice of termination of employment: 21 February 2020

Date of end of employment: 21 February 2020

Weekly gross pay: €255 (24 hours per week in the relevant period as per schedule 3 of the Act)

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the respective period of employment.

Redundancy Payment – case well founded.