Complainant

Respondent

Anonymised Parties

Liquidity Manager

A Retail Bank

Representatives

none 

none 

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-00038518-001

29/06/2020

The complainant commenced employment on 02/10/2017 with the respondent as a Liquidity Reporting Manager.  He was engaged on a fixed term contract which was due to expire on 02/10/2018.  His contract was renewed on 03/10/2018 and renewed again on 11/06/2019.  This second contract was due to expire on 31/12/2019.    The complainant is seeking redundancy payment as he has accrued over 104 weeks service.  He was paid €1182.70 gross per week.

The complainant commenced employment on 02/10/2017 and this was extended on two occasions – October 2018 and June 2019.  There was no gap in his employment and as he has over 104 weeks continuous service he submits that he is entitled to a statutory redundancy payment.  His first contract was to cover maternity leave and when this concluded he was given a contract and the purpose of this was to work on a particular project (“Project A”) which was based in the Finance Department.  He contends that he was never involved or working on any new project and continued to do the same work that he was doing since 2017.  He received no training for Project A.  He was advised by his manager in early October 2019 that his contract would end on 31/12/2019.  He applied to the respondent for a redundancy payment but was advised that as he was working on a fixed term contract he was not entitled to a redundancy payment. 

The complainant takes issue with the respondent’s position that Section 7(2) of the Redundancy Payment Acts does not apply. The complainant believes that Section 7(2) (c) is relevant in that is clear that by not renewing his contract of employment the respondent has decided to carry on the business with fewer employees.  In addition, the complaint submits that the fact that Project A was put on hold and this was the reason given for the contract extension is relevant.  He never worked on this project and continued to undertake the same duties that he was doing from day one.  As he was not provided with any specific training in relation to Project A the complainant submits that Section 7(2) (d) and (e) of the Act are relevant.

The complainant noted that the respondent seeks to rely on the decision of ADJ-00016408 [Graduate Employee v Local Authority] and submits that this is irrelevant as there is no link between a graduate programme and an employee who is a Fixed Term Employee.  The term “Fixed term employee” does not include employees in vocational training or in apprenticeship schemes.  The complainant submits that this case also differs from his situation as he has over 104 weeks continuous employment with the same employer.

The respondent operates a retail bank in Ireland.  It is classified as a major financial institution and is regulated by the Central Bank of Ireland and the European Central Bank.  The bank employs about 2,400 employees and has a network of branches located nationwide.

The complainant commenced employment on 02/10/2017 on a fixed term contract which was due to expire on 02/10/2018.  The purpose of this contract was to cover maternity leave.  The complainant’s contract was renewed as another manager in the department resigned and pending the filling of this vacancy the complainant was given a specified purpose contract to provide additional support which was linked to the completion of a specific project (Project A).  The complainant continued to assist with the operational day-to-day work as he had done in his previous contracts.  His contract came to a natural end on 31/12/2019.  Following an independent review, it was decided that Project A would be postponed until 2021 and as the complainant had fulfilled the purpose of his contract there was no reason to extend this further.  The work the complainant was doing was returned to the other employees who were engaged on Project A.  There were no redundancies taking place in the department or in the bank at the time the complainant’s contract came to an end.

The respondent does not accept that the complainant is entitled to a redundancy payment and notes that Section 7(2) of the Redundancy Payments Acts outlines five different scenarios where “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 for business of which the employee was employed by him, or has ceased to intends to cease, to carry on that business in the place where the employee was so employed or...   It is the respondent’s position that this is not applicable to the complainant as the bank has not or does not intend to cease to carry out its business.

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in a place where he was so employed have ceased or diminished or are expected to cease of diminish, or…  The respondent submits that this does not apply to the complainant as his contracts were of a specific purpose and the bank has not ceased or diminished any material work in this regard.

(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 has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or …  The respondent submits that this does not apply to the complainant as the bank had not decided to continue with fewer or less employees.  The respondent also submits that it did not have a redundancy situation in effect when the complainant’s contract expired.

(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) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or…  The respondent submits that this does not apply to the complainant as the work which the complainant was undertaking was not altered in such a manner that he would not be qualified to complete.

(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.  The respondent submits that this does not apply to the complainant as the work completed by the complainant was not altered in a way that would render him unqualified or not sufficiently trained to complete.

It is the respondent’s position that when the above scenarios are taken into account the complainant was not made redundant within the meaning of the Acts and the termination of his employment was personal to him by virtue of the fact that he was covering absent or resigned employees.  The respondent also submits that the conclusion of a fixed term contract does not amount to a redundancy and notes that the decision in ADJ-00016408 [Graduate Employee v Local Authority] found that the termination of the employee’s fixed term contract did not, in itself amount to a redundancy situation.

The facts in relation to this case are not in dispute.  The complainant had three successive contracts of employment with the respondent.  These commenced on 02/10/2017 and ended on 31/12/2019. While there is some disagreement in relation to the purpose of the latter two contracts it is clear that the complainant remained an employee and the work he done was inextricably linked to Project A in terms of taking work from others who were directly involved in the project.  This was confirmed in evidence provided at the hearing by the manager of the department involved.

The Redundancy Payment Act 1967 Section 7(1) given a general right to redundancy:  “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 which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, submissions and evidence provided at the remote hearing.  As Project A was postponed and the complainant’s contract was ended because of that I find that the date of dismissal is 31/12/2019 and that this was a dismissal in accordance with section 9(1)(a) and (b) of the Act. 

The complainant’s is entitlement to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  02/10/2017

Employment end date: 31/12/2019

Gross weekly remuneration:  €1,182.70

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

CA-00038518:

I decide that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act, in accordance with the following criteria:

Employment start date:  02/10/2017

Employment end date: 31/12/2019

Gross weekly remuneration:  €1,182.70

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

Redundancy payment.  Fixed term contract.