Complainant

Respondent

Anonymised Parties

A Chef

A Company operating Direct Provision

Representatives

Appeared in Person  

General Manager

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-00036072-001

08/05/2020

This is a claim for a lump sum Redundancy payment on termination of employment. The Complainant, who represented his own case presented with the “word for word “assistance of a Polish Interpreter.

The Respondent is involved in Service provision for an Immigrant Community and presented the case alone for the Company.

I received a written submission from the Respondent, who has rejected the claim.

The Complainant outlined that he had worked as a Chef at the Business premises from 6 March 2016 to the date his employment ended on 30 April 2020.

He submitted that he worked a 49-hour week in return for a wage of €612.00. He claimed a lump sum redundancy payment. He was one of two Chefs at the Business.

The Complainant outlined that the Business had changed ownership in July 2019 and he exhibited a copy of a letter sent to staff at that time which announced a new owner and a confirmation of

“no change to your terms of employment that are currently specified in your contract of employment “

Service was to be classed as unbroken. The Complainant outlined that he had changed on that basis.

I asked for clarification on the Company name as the name listed on the letter did not match that submitted on the complaint form. The Respondent clarified that the company listed on the complaint form was a subsidiary of the Company titled on the letter of 31 July 2019 and comprised the complainant’s employer.

The Complainant detailed a meeting he had with the respondent during April 2020, he was informed that cooking at the centre would cease and he was informed that his job was gone. He denied that he had been offered the prospect of new work on less hours and argued that he entered a redundancy situation after 4 years continuous employment.

The Respondent did not take the opportunity to ask questions of the complainant.

His departure was not marked with a letter of resignation. He proceeded to apply for a Covid Payment on line on 30 April 2020. He clarified that he had elected for the covid payment over job Seekers Benefit, on advice.

The Complainant introduced the topic of an offer of re-instatement from the company and felt sure that he had submitted this letter to WRC. No such letter was received from the complainant either before or post hearing.

The Respondent operates a Direct Provision Centre, having taken possession of the premises in July 2019. The Complainant was one of two chefs who operated a back to back carvery.

On 29 July 2020, the Respondent forwarded a written submission to the WRC which stated that the Business intended to cease centralised cooking in June 2020. The complainant left employment in late April, 5 weeks before that eventuality. He told the Business that he was “anxious to apply for the pandemic payment” and left the business in the lurch.

The Respondent outlined that the Business was planning to convert to self-catering and he sat with the complainant with the support of a work-based interpreter to explain these plans during March and April 2020.

He flagged the possible changes and that staff would continue to be employed at the Business. The complainant wanted to leave immediately, and the respondent prevailed on him to continue to cook until the change process took effect in June. The Complainant made it known that he wished to secure the pandemic payment and left on April 30, without notice. The respondent understood that the departure had been on good terms and he was shocked by the claim for redundancy. He denied a declaration of “no work “for the complainant.

During cross examination, the respondent confirmed that he had not received a letter of resignation from the complainant. He confirmed that the cooking service had gone on for 5-6 weeks after he left, and the complainants work was undertaken by his colleague chef and others.

The respondent said it had been his intention to discuss other options of full-time work for the complainant and accepted that he had not formalised an offer of replacement work by the time of the complainant’s departure on April 30.

The Respondent clarified that the complainant was not placed on temporary layoff, nor was it even considered as he expected to be able to restructure the workforce post the projected changes in the cooking system.

The business has since transitioned from the Carvery without making redundancies.

I have been requested to assess the facts of the case and to decide whether the complainant was made redundant on 30 April 2020.

In reaching my decision, I have had regard for written submissions and oral evidence.

Firstly, I have a Preliminary issue of my own to resolve. On reading this case in advance, I was uncertain if the complainant had been placed on temporary layoff? In this, I was mindful of the provisions of the Emergency Measures in the Public Interest (Covid 19) Act 2020 which through the operation of section 29, amended section 12 of the Redundancy Payments Act, 1967.

S. 29

Section 12.A(1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short time because of measures required to be taken by his employer to comply with, or because of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid 19.

As I understand this clause, I am not permitted to award a redundancy payment against the scenario of temporary lay off or short time working.

My questioning of the parties has resolved this for me as both parties accept that Temporary Lay off was not a consideration in this case.

The Complainant helpfully clarified that he sought a lump sum redundancy payment as his job as he knew it has ceased to exist.

I find that I am not curtailed in advancing this claim as Section 12, as amended is not applicable to the circumstances of this case.

Substantive Case:

The Complainant has claimed a lump sum redundancy payment, which has been contested by the respondent, who has argued that the complainant’s departure was voluntary and did not coincide with a dismissal.

It is necessary for me to outline the law on Redundancy.

An employer is entitled to dismiss an employee where the employees position becomes redundant. If the employee has two years continuous service, he can claim a lump sum payment

Section 7 (2) of the Redundancy Payments Act 1967 outlines the general right to redundancy payment.

7.— (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.

(2) 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) 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,

Redundancy is based on Impersonality and change , St Ledger v Frontline Distributors Ireland ltd [1995]ELR 160

The provisions of Section 7(1) and whether this is a Redundancy situation are contingent on a dismissal being affected in the first instance. Section 9 of the Act gives clear parameters of the framework in which the circumstances of dismissal prevail.

Dismissal by employer.

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

( a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

( b ) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

( c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.

I have reflected on the evidence adduced by the parties. Neither party presented a contract of employment for me to examine. I accept that the complainant was a full-time permanent employee whose employment had transferred from an earlier operator.

I could not establish that the employer had terminated the complainant’s employment, with or without notice. I accept that he had flagged change through an interpreted engagement in March 2020. This change had not been quantified or qualified and was simply projected.

I can accept that this was unsettling for the complainant set against the stage of a global pandemic. However, the change had yet to happen at the time of the complainant’s departure from the company on April 30. The change was prospective.

In considering whether the complainant was entitled to consider himself dismissed and therefore redundant in accordance with section 9(1) (c)?

I am mindful of the findings in an EAT case of Mc Cann V Vantage Wholesale ltd RP253/2001, where Dermot Mc Carthy SC commented that the complainant in the case was entitled to treat the company’s actions in changing the nature of employment as a” repudiation of contract” This required a retrospective analysis.

In the instant case, change was announced for a date in June or July 2020 and the complainant was asked to stick with the service until then. I accept that change was due to be profound where the complainant’s role was due to disappear, quite likely bringing him into consideration for one of the criteria in Section 7(2) of the Act.

However, at the moment of his resignation, which I must accept was voluntary and not a dismissal, his work remained, and he was replaced, albeit for a short time. It is unknown whether substitute work which may have been pro-offered would have off set what may well in time have proved to be a redundancy situation. However, that is conjecture.

I did not identify how the actions of the employer compelled the complainant to resign and find a strong overlap in the case of a school cleaner who was found by the EAT to have resigned her position on conscientious grounds following a transfer of employment. In Collins v Excel Properties Service ltd. December 1998, the Tribunal found that the employee had chosen to resign, and her cleaning job was still in existence.

I appreciate that the Complainant was facing a future of change at the company, however he jumped the gun when he resigned on 30 April 2020 in advance of that change occurring and significantly in advance of being dismissed by his employer. This was not yet a redundancy situation as the need for his position prevailed.

I was struck by the complainant’s early pursuance of his chosen DSP payment concurrent with his last day of work. I find that he was somewhat blinded by the immediacy of this payment and he rushed his termination of employment with that benefit in mind. I note that he did not elect for a Job seekers payment which normally follows a redundancy situation.

I found shortcomings on how the respondent managed the complainants exit. He did not record his departure by seeking a letter of resignation. This fell short of best practice governing these situations and is something I would like the respondent to address in any end of employment situation going forward.

For now, I must find that the complainant has not satisfied the terms of Section 9 of the Redundancy Payments act 1967 as he was not dismissed and thus not eligible to claim a lump sum redundancy payment.

I find his claim for redundancy to be not well founded.

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.

I have found the claim to be not well founded. The complainant has not proved that a redundancy situation occurred in the circumstances of the case.

Claim for Redundancy during Covid Pandemic