CORRECTION ORDER ISUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT, 1997.
This Correction Order should be read in conjunction with the Decision issued on the 29th.July 2021 |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00027665
Parties:
| Complainant | Respondent |
Parties | Martins Biedre | Ballyleague Mushrooms Limited |
Representatives | Richard Stapleton Richard Stapleton | Thomas Ryan Peinsula |
Complaint(s):
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-00035589-001 | 06/04/2020 |
Date of Adjudication Hearing: 08/06/2021
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as a Mushroom Harvester with the respondent from the 1st.January 2007 to the 14th.Feb. 2020 when the claimant was made redundant.The claimant asserts that the respondent is in breach of the Act for failing to pay the claimant his statutory redundancy.The respondent rejects the complaint and argues that by virtue of the redundancy constituting a collective and compulsory redundancy and that the replacement workers were engaged on allegedly inferior conditions of employment , the claimant had no remedy under the Act. |
Summary of Complainant’s Case:
The claimant’s representative submitted as follows :
Claimant was employed as a Mushroom Harvestor commencing in or around 1st January 2007 and was paid the sum of €494.12 gross weekly .
As per the RP50 form prepared by the Respondent, the Claimant received notice of the Termination of his employment by way of redundancy on the 6th January 2020 with a termination date of the 14th February 2020.
The Claimant has 13.13 years of service and has a statutory redundancy entitlement of €13,469.71 Despite same, the Respondent has refused, neglected and/or omitted to discharge the Claimant’s redundancy entitlement.
Further submission will be made at the hearing of this complaint.
The claimant’s representative furnished documentation from the respondent confirming that the claimant’s position was redundant and a completed copy of the RP 50 , signed by the claimant and the respondent. He advised that the claimant had received a letter from the employer on the 29th.May 2020 offering him his position back .It was submitted that Section 15 requires the respondent to make any such offer within a time frame of 2 weeks ending on the date of dismissal.It was submitted that both parties had entered into a binding contract to make the claimant redundant , that the respondent could not opt out of that agreement and that the company was still in existence as per CRO advices.It was submitted that by their own admission the company had failed to notify the Minister of any collective redundancy and that accordingly the respondent’s reliance on Section 7(2A) was inappropriate. |
Summary of Respondent’s Case:
The respondent’s representative submitted as follows : Submissions Employment :Commenced 1st.January 2007 Employment Ceased: 14 February 2020 Pay: €494.12 Gross Per Week Claim Commenced: €7th April 2020 Respondent Representative: Thomas Ryan Peninsula Introduction 1. The Respondent is a mushroom producer. 2. The Claimant was employed as a general operative. 3. The Claimant has brought a claim pursuant to s.39 Redundancy Payments Act 1967. Facts 4. The Claimant was employed on or about 01.Jan/2007 as a general operative. 5. The Respondent produces mushrooms primarily for the retail market. The Respondent is reliant on the export market to the United Kingdom. 3 6. Due to the effects of the departure of the United Kingdom from the European Union, the Respondent suffered a significant reduction in trade. 7. On 06 January 2020 the Respondent initiated an information and consultation process. The employees were represented by Andris Lipstovs, an employee of the Respondent. The Respondent met with all employees and informed them of the circumstances affecting the Respondent. 8. On 07 February 2020 the Respondent wrote to the Minister for Employment Affairs and Social Protection informing the Minister that the Respondent intended to restructure trading activities and the reasons for same. 9. On 14 February 2020 the Claimant was informed by letter that his position was being made redundant. 57 employees of the Respondent were made redundant on 14 February 2020. 10. The Respondent ceased trading in January 2021. 11. With the on-sent of the Covid-19 Pandemic in March 2020 the Respondent experienced a significant increase in demand within the retail sector. This was largely due to a reduction in demand in the wholesale (i.e. Catering) sector and an increase in demand in supermarkets. 12. The Claimant commenced the within claim on 7th of April 2020. 13. The Respondent wrote to all employees on 27 May 2020 informing them that production would be recommencing in June 2020 and that their previous role was available to them. 14. The Claimant failed to take up the invitation to return to work. No other employee accepted the offer of re-engagement. 15. The Respondent engaged a contractor to satisfy the staffing needs. This arrangement continued until January 2021, at which time the Respondent took the decision to cease trading. Law 16. s.7 Redundancy Payment Act 1967 (as amended) provides: 4 (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 four years ending on that date. 17. A redundancy occurs in circumstances as set out in s.7(2) 1967 Act: 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, 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 (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) 5 should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) 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 by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained[.] 18. However, s.7(2A) 1967 Act (as amended) provides: For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if— (a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977, (b) the dismissals concerned were effected on a compulsory basis, (c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by— (i) other persons who are, or are to be, directly employed by the employer, or (ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements, (d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and (e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees. 6 19. s.6 1977 Act provides: (1) For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is — (a) at least 5 in an establishment normally employing more than 20 and less than 50 employees, (b) at least 10 in an establishment normally employing at least 50 but less than 100 employees, (c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and (d) at least 30 in an establishment normally employing 300 or more employees. 20. The Respondent met with the workers on the 12th June 2020 (See Appendix 1) and offered suitable employment to them but none of the jobs on offer were accepted 21. All 57 employees of the Respondent were made redundant in February 2020. This satisfies the requirement of s.6(1)(b) 1977 Act and therefore also s.7(2A)(a) 1967 Act. 22. The dismissals of all 57 employees were effected on a compulsory basis, satisfying the requirements of s.7(2A)(b) 1967 Act. 23. The dismissed employees were replaced by other persons whose services were provided to that Respondent in pursuance of other arrangements in satisfaction of s.7(2A)(c)(ii) 1967 Act. 24. Those workers who replaced the dismissed employees performed essentially the same tasks as the Respondent in satisfaction of s.7(2A)(d) 1967 Act. 25. The terms of employment of the workers who replaced the dismissed employees were materially inferior to those of the Respondent in that they were not engaged as employees by the Respondent. This satisfies the requirement of s.7(2A)(e) 1967 Act. 7 26. Accordingly, the Claimant is not a person to whom s.7 Redundancy Payments Act 1967 applies. 27. The Claimant’s claim for pay pursuant to s.39 1967 Act should be dismissed. Conclusion 28. The Claimant has brought a claim pursuant to s.39 1967 Act. 29. The Claimant is excluded from the protection of the 1967 Act by operation of s.7(2A) 1967 Act (as amended). 30. The Claimant’s claim should be dismissed. Addendum s.7(2A)(c) 1967 Act (as amended) provides: the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by— It is of not that the Respondent operates several plants. This complies with the exclusion in the above section and therefore the requirements of s.7(2A)(c), (d) and (e) are not necessary to comply with s.7(2A).
The respondent’ s representative submitted the following account of their record of a meeting that took place between the respondent and the workers on the 12th.June 2020/
DATE- FRIDAY 12 June 2020 VENEUE - FARM ATTENDING - Mr.X , plus interpretors plus Employees of Ballyleague We met the employees at 3pm to discuss their issues on returning to work for the company. Mr. X stated that all employees are welcome to take up their original position on their original contract as we need to start production at the site . The employees stated they wanted to come back on new contracts as they were entitled to redundancies. The meeting concluded with only one person taking up employment and she was on maternity leave.” At the hearing the respondent clarified that notice was not served on the Minister in February 2020 and that the reference to same contained in the submission was incorrect. |
Findings and Conclusions:
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties .The respondent confirmed in writing on the 14th.February 2020 that the claimant’s position was made redundant on the 14th.February 2020 and signed off on the RP50 on the 21st.Feb. 2020 confirming the end of employment as the 14th.Feb.2020.I am satisfied on the basis of the documentary evidence presented and the submissions of both parties that this was a genuine redundancy situation arising from the downfall in trade owing to the departure of the UK from the European Union. I cannot accept the respondent’s argument that the claimant’s dismissal arising from redundancy on the foregoing date can be changed by subsequent events.This was not a lay off and the employment was terminated.The intended effect of Section 7(2A) – which is being invoked by the respondent – was enacted to deal with situations in which collective redundancies were effected so as to replace workers with others on inferior terms and allow a remedy for such eventualities under the Unfair Dismissals Acts 1922-2017.In this case , at the time the claimant was dismissed on the 14th.February 2020 , the claimant was not dismissed for the purpose of facilitating the employment of others on inferior conditions – rather because of trading challenges arising from Brexit.The resumption of commercial activity did not surface until 3.5 months later when the respondent wrote to the claimant on the 27th.May 2020.Accordingly I find that what occurred here does not come within the intendment of Section 7(2A) of the Act .
Decision:Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Dated: 29th.July 2021 Workplace Relations Commission Adjudication Officer: EmerOShea Key Words:Redundancy/Collective Redundancy/relevance of Section 7(2A) |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00027665
Parties:
| Complainant | Respondent |
Parties | Martins Biedre | Ballyleague Mushrooms Limited |
Representatives | Richard Stapleton Richard Stapleton | Thomas Ryan Peinsula |
Complaint(s):
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-00035589-001 | 06/04/2020 |
Date of Adjudication Hearing: 08/06/2021
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as a Mushroom Harvester with the respondent from the 1st.January 2007 to the 14th.Feb. 2020 when the claimant was made redundant.The claimant asserts that the respondent is in breach of the Act for failing to pay the claimant his statutory redundancy.The respondent rejects the complaint and argues that by virtue of the redundancy constituting a collective and compulsory redundancy and that the replacement workers were engaged on allegedly inferior conditions of employment , the claimant had no remedy under the Act. |
Summary of Complainant’s Case:
The claimant’s representative submitted as follows :
Claimant was employed as a Mushroom Harvestor commencing in or around 1st January 2007 and was paid the sum of €494.12 gross weekly .
As per the RP50 form prepared by the Respondent, the Claimant received notice of the Termination of his employment by way of redundancy on the 6th January 2020 with a termination date of the 14th February 2020.
The Claimant has 13.13 years of service and has a statutory redundancy entitlement of €13,469.71 Despite same, the Respondent has refused, neglected and/or omitted to discharge the Claimant’s redundancy entitlement.
Further submission will be made at the hearing of this complaint.
The claimant’s representative furnished documentation from the respondent confirming that the claimant’s position was redundant and a completed copy of the RP 50 , signed by the claimant and the respondent. He advised that the claimant had received a letter from the employer on the 29th.May 2020 offering him his position back .It was submitted that Section 15 requires the respondent to make any such offer within a time frame of 2 weeks ending on the date of dismissal.It was submitted that both parties had entered into a binding contract to make the claimant redundant , that the respondent could not opt out of that agreement and that the company was still in existence as per CRO advices.It was submitted that by their own admission the company had failed to notify the Minister of any collective redundancy and that accordingly the respondent’s reliance on Section 7(2A) was inappropriate.
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Summary of Respondent’s Case:
The respondent’s representative submitted as follows : Submissions Employment :Commenced 1st.January 2007 Employment Ceased: 14 February 2020 Pay: €494.12 Gross Per Week Claim Commenced: €7th April 2020 Respondent Representative: Thomas Ryan Peninsula Introduction 1. The Respondent is a mushroom producer. 2. The Claimant was employed as a general operative. 3. The Claimant has brought a claim pursuant to s.39 Redundancy Payments Act 1967. Facts 4. The Claimant was employed on or about 01.Jan/2007 as a general operative. 5. The Respondent produces mushrooms primarily for the retail market. The Respondent is reliant on the export market to the United Kingdom. 3 6. Due to the effects of the departure of the United Kingdom from the European Union, the Respondent suffered a significant reduction in trade. 7. On 06 January 2020 the Respondent initiated an information and consultation process. The employees were represented by Andris Lipstovs, an employee of the Respondent. The Respondent met with all employees and informed them of the circumstances affecting the Respondent. 8. On 07 February 2020 the Respondent wrote to the Minister for Employment Affairs and Social Protection informing the Minister that the Respondent intended to restructure trading activities and the reasons for same. 9. On 14 February 2020 the Claimant was informed by letter that his position was being made redundant. 57 employees of the Respondent were made redundant on 14 February 2020. 10. The Respondent ceased trading in January 2021. 11. With the on-sent of the Covid-19 Pandemic in March 2020 the Respondent experienced a significant increase in demand within the retail sector. This was largely due to a reduction in demand in the wholesale (i.e. Catering) sector and an increase in demand in supermarkets. 12. The Claimant commenced the within claim on 7th of April 2020. 13. The Respondent wrote to all employees on 27 May 2020 informing them that production would be recommencing in June 2020 and that their previous role was available to them. 14. The Claimant failed to take up the invitation to return to work. No other employee accepted the offer of re-engagement. 15. The Respondent engaged a contractor to satisfy the staffing needs. This arrangement continued until January 2021, at which time the Respondent took the decision to cease trading. Law 16. s.7 Redundancy Payment Act 1967 (as amended) provides: 4 (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 four years ending on that date. 17. A redundancy occurs in circumstances as set out in s.7(2) 1967 Act: 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, 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 (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) 5 should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) 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 by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained[.] 18. However, s.7(2A) 1967 Act (as amended) provides: For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if— (a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977, (b) the dismissals concerned were effected on a compulsory basis, (c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by— (i) other persons who are, or are to be, directly employed by the employer, or (ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements, (d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and (e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees. 6 19. s.6 1977 Act provides: (1) For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is — (a) at least 5 in an establishment normally employing more than 20 and less than 50 employees, (b) at least 10 in an establishment normally employing at least 50 but less than 100 employees, (c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and (d) at least 30 in an establishment normally employing 300 or more employees. 20. The Respondent met with the workers on the 12th June 2020 (See Appendix 1) and offered suitable employment to them but none of the jobs on offer were accepted 21. All 57 employees of the Respondent were made redundant in February 2020. This satisfies the requirement of s.6(1)(b) 1977 Act and therefore also s.7(2A)(a) 1967 Act. 22. The dismissals of all 57 employees were effected on a compulsory basis, satisfying the requirements of s.7(2A)(b) 1967 Act. 23. The dismissed employees were replaced by other persons whose services were provided to that Respondent in pursuance of other arrangements in satisfaction of s.7(2A)(c)(ii) 1967 Act. 24. Those workers who replaced the dismissed employees performed essentially the same tasks as the Respondent in satisfaction of s.7(2A)(d) 1967 Act. 25. The terms of employment of the workers who replaced the dismissed employees were materially inferior to those of the Respondent in that they were not engaged as employees by the Respondent. This satisfies the requirement of s.7(2A)(e) 1967 Act. 7 26. Accordingly, the Claimant is not a person to whom s.7 Redundancy Payments Act 1967 applies. 27. The Claimant’s claim for pay pursuant to s.39 1967 Act should be dismissed. Conclusion 28. The Claimant has brought a claim pursuant to s.39 1967 Act. 29. The Claimant is excluded from the protection of the 1967 Act by operation of s.7(2A) 1967 Act (as amended). 30. The Claimant’s claim should be dismissed. Addendum s.7(2A)(c) 1967 Act (as amended) provides: the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by— It is of not that the Respondent operates several plants. This complies with the exclusion in the above section and therefore the requirements of s.7(2A)(c), (d) and (e) are not necessary to comply with s.7(2A).
The respondent’ s representative submitted the following account of their record of a meeting that took place between the respondent and the workers on the 12th.June 2020/
DATE- FRIDAY 12 June 2020 VENEUE - FARM ATTENDING - Mr.X , plus interpretors plus Employees of Ballyleague We met the employees at 3pm to discuss their issues on returning to work for the company. Mr. X stated that all employees are welcome to take up their original position on their original contract as we need to start production at the site . The employees stated they wanted to come back on new contracts as they were entitled to redundancies. The meeting concluded with only one person taking up employment and she was on maternity leave.” At the hearing the respondent clarified that notice was not served on the Minister in February 2020 and that the reference to same contained in the submission was incorrect.
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Findings and Conclusions:
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties .The respondent confirmed in writing on the 14th.February 2020 that the claimant’s position was made redundant on the 14th.February 2020 and signed off on the RP50 on the 21st.Feb. 2020 confirming the end of employment as the 14th.Feb.2020.I am satisfied on the basis of the documentary evidence presented and the submissions of both parties that this was a genuine redundancy situation arising from the downfall in trade owing to the departure of the UK from the European Union. I cannot accept the respondent’s argument that the claimant’s dismissal arising from redundancy on the foregoing date can be changed by subsequent events.This was not a lay off and the employment was terminated.The intended effect of Section 7(2A) – which is being invoked by the respondent – was enacted to deal with situations in which collective redundancies were effected so as to replace workers with others on inferior terms and allow a remedy for such eventualities under the Unfair Dismissals Acts 1922-2017.In this case , at the time the claimant was dismissed on the 14th.February 2020 , the claimant was not dismissed for the purpose of facilitating the employment of others on inferior conditions – rather because of trading challenges arising from Brexit.The resumption of commercial activity did not surface until 3.5 months later when the respondent wrote to the claimant on the 27th.May 2020.Accordingly I find that what occurred here does not come within the intendment of Section 7(2A) of the Act .
Decision:Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Dated: Workplace Relations Commission Adjudication Officer: EmerOShea Key Words:Redundancy/Collective Redundancy/relevance of Section 7(2A)
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