CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision issued on 13/04/2022and should be read in conjunction with that Decision. ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00028464
Parties:
| Complainant | Respondent |
Parties | Andris Lipstovs | Ballyleague Mushrooms Ltd |
Representatives | The claimant represented himself | Thomas Ryan Peninsula |
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-00036571-001 | 08/06/2020 |
Date of Adjudication Hearing: 10/01/2022
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 Supervisor on a mushroom farm from the 21st.Feb. 2011 to the 14th/Feb. 2020 when he submits he was made redundant .The claimant earned €693.50 per week.The claimant submits that the respondent is in breach of the Act for failing to pay him statutory redundancy .The respondent rejects the complaint and asked that the claim be dismissed on the basis that the complainant was offered suitable alternative employment which was rejected by the complainant; it was further asserted that the claimant could not enjoy the protection of the Act in circumstances of a collective redundancy where the workforce was replaced by workers on inferior terms. |
Summary of Complainant’s Case:
The claimant submitted into evidence a letter from the respondent dated the 14th.Feb. 2020 confirming redundancy owing to reorganisation of the company.He ceased work with the company on the 4th.March 2020 – he was asked by the respondent Mr.K to return to work on the 18th.June 2020 – he had received notice of resuming work by way of letter on the 29th.May.He refused to come back as he had been a Manager and Supervisor at the farm and had reassured his colleague workers that everything would be ok and that they would be paid redundancy. They were not paid and some employees blamed the claimant . He did not want to return because of the ensuing poor relations. He had told the workers to hold off on making a claim as the monies would be paid. In the event he returned on the 20th.October 2020 and remained to the 24th.Dec. 2020.He was concerned about the safety on the farm where there was broken equipment. He was still hoping he would be paid redundancy without making a complaint to the WRC.It was put to him that he was offered alternative employment and he confirmed that he considered KIlenaleck but it was 45km one way from his home and he had 2 children and his partner worked at night in Lanesboro. |
Summary of Respondent’s Case:
Ballyleague Mushrooms Limited Respondent
Submissions on Behalf of the Respondent Employment Commenced: 21st February2011 Pay: €693.50 gross per week Employment Ceased: 14 February 2020 Claim Commenced: 08th June 20210 Respondent Representative: Thomas Ryan, Peninsula
Introduction 1. Andirs Lipstovs (hereinafter referred to as “the Claimant”) commenced employment on the 21st February 2011 as a Supervisor with Ballyleague Mushrooms Limited (hereinafter referred to as “the Respondent”). 2. The Respondent is a mushroom producer based in Moher, Lanesborough, county Roscommon. 3. The Claimant has lodged the within complaint pursuant to s.39 Redundancy Payments Act 1967. Facts 4. The Claimant commenced employment with the Respondent on the 21st February 2011. The Claimant remained employed by the Respondent until they ceased trading on 14 February 2020. During this time, the Claimant maintained an excellent employment record. 5. The Respondent produces mushrooms primarily for the retail market. The Respondent is also reliant on the export market to the United Kingdom. 6. Due to the effects of the departure of the United Kingdom from the European Union, the Respondent suffered a significant reduction in trade and anticipated this effect to escalate in detriment to their operation. 7. On 06 January 2020, the Eugene Kiernan (EK), Director of the Respondent, initiated an information and consultation process. The employees of the Respondent, including the Claimant were represented by the Farm Supervisor of the Respondent. EK met with all employees and informed them of the economic circumstances affecting the Respondent. 8. As part of that meeting, EK offered all employees to transfer to roles within their other farms, Sheelin and Kildorough Mushrooms respectively. However, the Claimant failed to accept this offer. 9. On 14 February 2020 the Claimant was informed that his position was redundant, this was confirmed by way of letter by Mr Conor Kiernan (CK), Director of the Respondent Company. A total of 57 employees of the Respondent Company were made redundant on 14 February 2020. 10. With the onset 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. 11. The Respondent wrote to the Claimant on 29 May 2020 informing him that production would be recommencing in June 2020 and that his previous role was available to them. 12. The Claimant failed to take up the invitation to return to work, and rather proceeded with the within complaints pursuant to the Section 39 of the Redundancy Payments Act 1967 which were lodged with the Workplace Relations Commission on 8.06.2020 13. The Respondent resumed operations in June 2020 and was required to engage a contractor to satisfy the staffing needs. This arrangement continued until January 2021; at which time the Respondent took the decision to cease operations. Law 14. s.7 Redundancy Payment Act 1967 (as amended) provides: (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. 15. The Respondent respectively refers to Section 15 (2), which reads as follows – (2) An employee […] shall not be entitled to a redundancy payment if […] (a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before [the termination of his contract]. (c) the offer constitutes an offer of suitable employment in relation to the employee, (d) the renewal or re-engagement would take effect not later than four weeks after the date of [the termination of his contract], and (e) he has unreasonably refused the offer. 16. The Respondent refers most notably to subsections (d) and (e) as above. Although the Respondent’s offer of re-engagement came outside of the statutory time frame, mainly due to the uncertainty of trade due to covid-19, but was nevertheless a genuine offer, one that was unreasonably declined. 17. The Claimant’s claim for pay pursuant to s.39 1967 Act should be dismissed. Conclusion 18. The Claimant has brought a claim pursuant to s.39 1967 Act. 19. The Claimant is excluded from the protection of the 1967 Act by operation of s.7(2A) 1967 Act (as amended). 20. The within claim should be dismissed. 21. The Respondent reserves the right to adduce further submissions at the hearing of the matters. |
Findings and Conclusions:
Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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: 13-04-2022 Workplace Relations Commission Adjudication Officer: Emer O'Shea Key Words:
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ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00028464
Parties:
| Complainant | Respondent |
Parties | Andris Lipstovs | Breffni Mushrooms |
Representatives | The claimant represented himself | Thomas Ryan Peninsula |
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-00036571-001 | 08/06/2020 |
Date of Adjudication Hearing: 10/01/2022
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 Supervisor on a mushroom farm from the 21st.Feb. 2011 to the 14th/Feb. 2020 when he submits he was made redundant .The claimant earned €693.50 per week.The claimant submits that the respondent is in breach of the Act for failing to pay him statutory redundancy .The respondent rejects the complaint and asked that the claim be dismissed on the basis that the complainant was offered suitable alternative employment which was rejected by the complainant; it was further asserted that the claimant could not enjoy the protection of the Act in circumstances of a collective redundancy where the workforce was replaced by workers on inferior terms. |
Summary of Complainant’s Case:
The claimant submitted into evidence a letter from the respondent dated the 14th.Feb. 2020 confirming redundancy owing to reorganisation of the company.He ceased work with the company on the 4th.March 2020 – he was asked by the respondent Mr.K to return to work on the 18th.June 2020 – he had received notice of resuming work by way of letter on the 29th.May.He refused to come back as he had been a Manager and Supervisor at the farm and had reassured his colleague workers that everything would be ok and that they would be paid redundancy. They were not paid and some employees blamed the claimant . He did not want to return because of the ensuing poor relations. He had told the workers to hold off on making a claim as the monies would be paid. In the event he returned on the 20th.October 2020 and remained to the 24th.Dec. 2020.He was concerned about the safety on the farm where there was broken equipment. He was still hoping he would be paid redundancy without making a complaint to the WRC.It was put to him that he was offered alternative employment and he confirmed that he considered KIlenaleck but it was 45km one way from his home and he had 2 children and his partner worked at night in Lanesboro. |
Summary of Respondent’s Case:
Ballyleague Mushrooms Limited Respondent
Submissions on Behalf of the Respondent Employment Commenced: 21st February2011 Pay: €693.50 gross per week Employment Ceased: 14 February 2020 Claim Commenced: 08th June 20210 Respondent Representative: Thomas Ryan, Peninsula
Introduction 1. Andirs Lipstovs (hereinafter referred to as “the Claimant”) commenced employment on the 21st February 2011 as a Supervisor with Ballyleague Mushrooms Limited (hereinafter referred to as “the Respondent”). 2. The Respondent is a mushroom producer based in Moher, Lanesborough, county Roscommon. 3. The Claimant has lodged the within complaint pursuant to s.39 Redundancy Payments Act 1967. Facts 4. The Claimant commenced employment with the Respondent on the 21st February 2011. The Claimant remained employed by the Respondent until they ceased trading on 14 February 2020. During this time, the Claimant maintained an excellent employment record. 5. The Respondent produces mushrooms primarily for the retail market. The Respondent is also reliant on the export market to the United Kingdom. 6. Due to the effects of the departure of the United Kingdom from the European Union, the Respondent suffered a significant reduction in trade and anticipated this effect to escalate in detriment to their operation. 7. On 06 January 2020, the Eugene Kiernan (EK), Director of the Respondent, initiated an information and consultation process. The employees of the Respondent, including the Claimant were represented by the Farm Supervisor of the Respondent. EK met with all employees and informed them of the economic circumstances affecting the Respondent. 8. As part of that meeting, EK offered all employees to transfer to roles within their other farms, Sheelin and Kildorough Mushrooms respectively. However, the Claimant failed to accept this offer. 9. On 14 February 2020 the Claimant was informed that his position was redundant, this was confirmed by way of letter by Mr Conor Kiernan (CK), Director of the Respondent Company. A total of 57 employees of the Respondent Company were made redundant on 14 February 2020. 10. With the onset 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. 11. The Respondent wrote to the Claimant on 29 May 2020 informing him that production would be recommencing in June 2020 and that his previous role was available to them. 12. The Claimant failed to take up the invitation to return to work, and rather proceeded with the within complaints pursuant to the Section 39 of the Redundancy Payments Act 1967 which were lodged with the Workplace Relations Commission on 8.06.2020 13. The Respondent resumed operations in June 2020 and was required to engage a contractor to satisfy the staffing needs. This arrangement continued until January 2021; at which time the Respondent took the decision to cease operations. Law 14. s.7 Redundancy Payment Act 1967 (as amended) provides: (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. 15. The Respondent respectively refers to Section 15 (2), which reads as follows – (2) An employee […] shall not be entitled to a redundancy payment if […] (a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before [the termination of his contract]. (c) the offer constitutes an offer of suitable employment in relation to the employee, (d) the renewal or re-engagement would take effect not later than four weeks after the date of [the termination of his contract], and (e) he has unreasonably refused the offer. 16. The Respondent refers most notably to subsections (d) and (e) as above. Although the Respondent’s offer of re-engagement came outside of the statutory time frame, mainly due to the uncertainty of trade due to covid-19, but was nevertheless a genuine offer, one that was unreasonably declined. 17. The Claimant’s claim for pay pursuant to s.39 1967 Act should be dismissed. Conclusion 18. The Claimant has brought a claim pursuant to s.39 1967 Act. 19. The Claimant is excluded from the protection of the 1967 Act by operation of s.7(2A) 1967 Act (as amended). 20. The within claim should be dismissed. 21. The Respondent reserves the right to adduce further submissions at the hearing of the matters. |
Findings and Conclusions:
Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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: 13-04-2022 Workplace Relations Commission Adjudication Officer: Emer O'Shea Key Words:
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