ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00025204

Parties: 

Complaints:

Date of Adjudication Hearing:  14/01/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complaints are made by a maintenance worker who was employed by a publican for one day a week since 13th July 2004. The complaints refer to the alleged failure of the Respondent to provide the Complainant with his written terms and conditions of employment, and for an alleged unfair dismissal of the Complainant following a transfer of undertaking where the Respondent was the transferee. The complaints were denied by the Respondent.

Summary of Respondent’s Case:

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                              

The Respondent submitted that in January 2019, under a TUPE, it was the transferee of the place of work of the Complainant.  The Respondent maintained it had written to all employees in December 2018 informing them of the transfer, and as the Complainant was on sick leave at the time it did not meet with the Complainant until he returned from sick leave in January 2019. At this meeting the Respondent informed the Complainant that it had to complete electrical and plumbing works to renew the licence on the premises and as the Complainant did not hold qualifications the work would be carried out by a certified contractor/ tradesperson.

They met again where the Respondent submitted that the Complainant discussed there was no work and that he believed his role had become redundant. The Respondent confirmed it would explore the options of redundancy and get back to the Complainant. The Respondent contended that the Complainant did not raise any concerns regarding being made redundant and to the contrary advised he would be satisfied to get a redundancy payment. On that basis the Respondent paid the Complainant for the weeks up to 21st June 2019, and paid him any outstanding holiday pay, and processed a RP50 application for the redundancy which was to be paid out of the Social Fund.  The Complainant did not raise a concern at the time nor raise a grievance about his redundancy.  The Respondent therefore had no doubt the Complainant had accepted the redundancy.

The Respondent understood the redundancy payment was processed but it only became aware of the fact the Redundancy payment had not been made when it received the WRC complaint on 12th November 2019.  The Respondent immediately followed the matter up with the Complainant who completed a new RP50 form.  The Respondent met with the Complainant and his wife on three occasions between then and 18th December 2019, that the Complaint returned a signed RP50 form and the Respondent personally delivered this to the Department of Employment Affairs and Social Protection to ensure the form was progressed without delay.

On that basis the Respondent submitted that the Complainant accepted a redundancy in June 2019 and never raised a grievance or any concern regarding the redundancy situation either during his employment or when matters were being addressed in December 2019.  On that basis the Respondent submitted the Complainant was not unfairly dismissed. 

CA-00031986-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent submitted that it was a transferee of the business in January 2019 and it would have written to all employees during December 2018 before it took ownership of the business.  It confirmed the business was acquired due to a TUPE.  The Respondent maintained that the Complainant had a written contract at the time of the transfer and as it had not intended to change the Complainant’s duties or terms and conditions of employment it was not obliged to issue him with a new or revised contract.   It submitted that it subsequently had discussions with the Complainant where it was agreed his job was to be made redundant, and the position was made redundant on 21st June 2019.

The Respondent therefore maintained it was not in breach of its obligations under the Act.

Summary of Complainant’s Case:

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                              

The Complainant submitted that when the change of ownership took place in January 2019 he was on sick leave and he eventually met with the owner in late January 2019. When he came to work that day, he was told that there was no work available for him.  He was advised to come to work the following week which he did for a number of weeks, but there was still no work for him.  The Complainant submitted that he spoke with a manager who advised him that he would probably be offered redundancy by the owner. 

The Complainant maintained that he did not want redundancy and never asked for it, but he was told in June 2019 as he had no trade certification to do his maintenance work he could no longer be employed.   Although he accepted that he was made redundant at the time he said he did not understand it and he never received any formal notification, or proper consultation about his redundancy.  He also maintained that he did not receive a redundancy payment and had sent three emails to the Respondent seeking this, but his requests were not responded to.  It was only after submitting his complaint to the WRC that the Complainant was then asked by the Respondent in December 2019 to sign a RP50 form.  The Complainant subsequently received a redundancy payment. The Complainant acknowledged that he did receive his pay and other entitlements up to the date of termination.

The Complainant submitted that he did not want to be made redundant and did not understand his rights when he signed the RP 50 in December 2019. He maintained he was unfairly dismissed.  The Complainant submitted that he had found it difficult to find alternative work to replace the one day a week he had lost due to the redundancy.  The Complainant advised that he has applied for jobs in a number of premises but could not alternative employment.

CA-00031986-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that he did not receive notification in writing of a change to his terms and conditions of employment after the transfer of undertaking.  The Complainant maintained that he did not receive any hours of work when the Respondent took over ownership of Complainant’s place of employment, and he had not been notified in writing  of a change in getting no work.

Findings and Conclusions:

CA-00031986-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.

Section 5(1) of the Terms of Employment (Information) Act, 1994 Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…,the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect,

Based on the evidence provided I am satisfied that the Respondent had in fact met its obligations under section 3 of the Act in that a written statement containing the particulars of the Complainant’s terms and conditions of employment was in place at the time of the transfer of the business.  At the time of the transfer the Complainant was employed for one day a week and following the transfer there was no change in these conditions in that the Complainant was paid for one day a week until the Respondent made the role redundant in June 2019.

I therefore do not find this complaint is well founded.       

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                              

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(c) of the Act states [w]ithout prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the redundancy of the employee.

Under section 7 (2) (c) of the Redundancy Payments Act 1967 as amended …[A]n 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 concernedthe dismissal is attributable wholly or mainly to… 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.

I am therefore satisfied that the Complainant’s became redundant as the Respondent required the maintenance work to be completed by a tradesman or contractor who was certified and therefore properly qualified for the work, which the Complainant was not.  I further note that following the issuing of the complaint to the WRC, the Respondent met with the Complainant on at number occasions, signed a RP50 form, and in signing that form accepted that his job was made redundant.  The Complainant was also paid his statutory redundancy entitlement. 

I therefore do not find the complaint was unfairly dismissed and that a legitimate redundancy situation existed at the time, and that the Complainant accepted that in June 2019, and again in December 2019 when after been given to me to consider the matter, he signed the RP50.

Decision:

CA-00031986-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 Act, I find that the complaint is not well founded and therefore falls.

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                              

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforementioned reasons I find this complaint of unfair dismissal not to be well-founded and accordingly dismiss same.

Dated:   26/01/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words: