Complainant

Respondent

Parties

Lynnette  Kelly

Jim Doyle Jim Doyle & Company

Representatives

John Forde John Forde HR Advisory & Support

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-00041559-001

15/12/2020

The Complainant commenced working for a financial firm on the 3rd January 2007. The Respondent, Mr Jim Doyle, was a partner in this firm. Subsequently the Respondent became the Complainant’s employer. The Complainant is seeking redundancy payment from the Respondent who denies her entitlement in that regard.

The Complainant outlined the background in relation to her employment with the Respondent as a result of which she claimed that her service was continuous from 2007 until 23/12/2019. In particular, the Complainant outlined the following representations made to her by the Respondent on foot of which she is seeking redundancy payment pursuant to the Redundancy Payments Acts [1967-2021]:

·       That following his request, she met with the Respondent in his own house on the evening of the 1st February 2018 when the Respondent advised her that  “his decision to stay practising depended on whether or not [Complainant] would continue working for him”. The Complainant stated that she agreed to stay working for the Respondent. The Complainant also stated that in the course of this meeting the Respondent stated that it “was his intention to wind down the business and retire within the next 2  years and that he had made provision for [Complainant’s] redundancy payment when he ceased trading”;

·       That in March 2019 the Respondent informed the Complainant that he had been advised by his tax consultant to “hold off paying [Complainant’s] redundancy payment until he was winding down the business”;

·       That in mid November 2019 the Respondent told the Complainant over the phone that “realistically, I will be finished up at Christmas”.

It is the position of the Complainant, that she accepted the Respondent’s assurances in good faith and relied on the Respondent’s representations that provision has been made for her  redundancy payment. The Complainant outlined that in the course of 2019, the Respondent negotiated with another financial firm with a view to transferring his undertakings. However this did not materialise, but notwithstanding the Respondent started transferring clients of the practice to various other firms. Accordingly the Complainant stated that the Respondent’s intention to retire was always clear to her. The Complainant stated that when the Respondent advised her in mid November 2019 that he would be finished up at Christmas, that she took this as her notice of redundancy and immediately started job hunting. The Complainant secured an offer of employment from January 2020. The Complainant advised the Respondent of her quest for new employment and obtained a reference from him dated 6th  December 2019 wherein the Respondent stated:

“As I am retiring from business in the near future [Complainant] was obliged to seek employment elsewhere….”

The Complainant stated that the Respondent hired a new employee at the start of 2020 and made it clear to her that this was a temporary position. In this regard, the Complainant stated that the new temporary employee was not a replacement for her/the Complainant. The Complainant stated that by the time the temporary employee had been hired a significant amount of the Respondent’s clients had already been transferred to another firm or were in the process of being transferred. The Complainant stated that the main duty of the temporary employee was to do payroll and that the Complainant trained her in this for three days in January 2020 as – according to the Complainant - the temporary had no experience in this area. The Complainant also maintained that her duties were more extensive and that she dealt with a much broader base/number of clients. The Complainant stated that by March 2020 almost all of the Respondent’s clients had transferred to a new financial firm and that the temporary employee also started employment with the same firm.

The Complainant stated that in June 2020 she posted Claim Form RP 77 to the Respondent and received a Solicitor’s letter in reply which advised that as she had resigned her position to take up alternative employment no redundancy claim arose as there had been a voluntary termination on her part. The Complainant maintained that her position was made redundant and that she was entitled to redundancy payment as a result.

The Respondent disputed and rejected that a redundancy situation had arisen. The Respondent stated that his assurances to the Complainant in relation to her redundancy fund was to encourage her to stay on in the business until it closed. However the Respondent stated that on the 5th  December 2019, the Complainant notified him that she was leaving though she did not submit a letter of resignation. The Respondent stated that the content of its reference for the Complainant was designed to be in her favour in terms of her choosing to leave the business. The Respondent advertised for a new temporary employee on the 29th November 2019 and specified the duties to be covered. The Respondent stated that at year end 2019 he knew he was not in a position to close the business and that the new employee received a six months contract. At that time also a number of the Respondent’s clients had stopped trading due to Covid 19.

The Respondent stated that he continued to practice up until June of 2020 and during that time was in the process of transferring the business to another firm.  However the Complainant had resigned by that stage and the Respondent stated that he was happy she had secured another permanent position.  The Respondent stated that the Complainant was aware her position had been advertised as a replacement was needed. In the circumstances, it is the position of the Respondent that this was not a redundancy situation as the Complainant voluntarily left her employment while the business was still in operation and was replaced by a temporary employee.

Section 7 of the Redundancy Payments Act [1967-2021] provides as follows:

“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy……, shall, subject to this Act, be entitled to the payment of moneys which shall be known……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…..

7 – (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if…..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 that 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…….”

Having considered all the evidence and submissions in this case, on balance it is my decision, that subject to the provisions of the Redundancy Payments Act [1967-2021], the Complainant is entitled to a redundancy payment from the Respondent for the following reasons:

-          I am satisfied from the evidence that the changes and re-organisation made by the Respondent in his business including his stated intention to retire and the ongoing transfer of his clients over 2019/2020 to another firm(s), comes within the parameters of the reasons for dismissal outlined at Section 7(2) of the Redundancy Payments Act [1967-2021] and particularly Section 7(2)(b) of the Act;

-          I consider there was an onus on the Respondent to provide specific clarity to the Complainant with regard to her future employment and that in the absence of this, the Complainant was entitled to rely on the representations of the Respondent in mid November 2019 – and previously - vis-a-vis his intention to wind down the business by Christmas 2019. In coming to this conclusion, I am mindful of the Complainant’s long service with the Respondent and the evidence that at a meeting with the Respondent on the 1st February 2018 she had confirmed her intention to continue working for the Respondent. In all the circumstances, I consider that the Complainant was entitled to take the Respondent’s mid November 2019 representation as notice to her of her redundancy. Further, I am of the view that the reference of the 6th December 2019 evidences this as the Respondent clearly stated that the Complainant “….was obliged to seek employment elsewhere”;

-          Given the changes in the Respondent’s business and the ongoing transfer and reduction of his clients, I am also satisfied that the new temporary employee did not replace the Complainant. In this regard, I note the extensive list of duties outlined in the Complainant’s contract of employment.

I have carefully considered all the information presented to me and I am satisfied the Complainant has established the existence of a redundancy situation and therefore the complaint is well founded. Accordingly, I decide that the Respondent should pay the Complainant her statutory redundancy entitlements based on the following criteria:

-          Date of Employment Commencement: 03/01/2007

-          Date Employment Ended: 23/12/2019

-          Gross monthly pay: €1722.79 for 28 hours/week worked

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

Redundancy