Complainant

Respondent

Parties

Marija  Leontjeva

Ballyleague Mushrooms Limited

Representatives

Zuzana Mokra North Leinster CIS ( Longford CIC)

Thomas Ryan Peninsula

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-00039830-001

15/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038813-001

03/06/2020

The complainant was employed as a mushroom harvester with the respondent from the 11th.May 2009 – 14th.February 2020 when she submits she was made redundant .The complainant earned €420 per week. The complainant submits that the respondent is in breach of the Act for failing to pay her 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 .

The complainant’s representative submitted that the complainant received a letter from company director MR.CK on the 14.02.2020 confirming that the complainant was no longer employed by the respondent due to the reorganisation of the company – resulting in her position being made redundant. On the 9.04.2020 the complainant was notified by company administrator that the respondent was doing “our best to contact the Department in relation to employee redundancy payments …the Dept. is under pressure dealing with the current pandemic and will be dealing with this in  due course .It was submitted that the complainant completed the RP77 form together with the RP50 form and forwarded them to the Redundancy and Insolvency Payments Section on the 26.05.2020 .The complainant was advised by the DSP on the 28.05.2020 that her documentation was being returned and that it was the responsibility of the employer to pay redundancy in the first instance and if the respondent was unable to do so , the DSP would pay the employees directly and recover the debt from the employer at a later stage. The DSP additionally advised her that if the employer was refusing to engage with her and sign her redundancy form , she should refer her case to the WRC.

The complainant was advised by Mr.CK on the 29.05.2020 that the company was returning to production on the 18th.June 2020 and that her position was available to her. The complainant was asked to reply within 7 days and was told that if she did not reply within this timeline  , it would be taken as notice of her resignation .The complainant completed her referral to  the WRC  on the 1.06.2020. The complainant replied to the employers correspondence of the 29.05.2021 , explaining that she understood her employment had ceased on the 14.20.2020 and stating that she was confused about the statement about resignation. No response was received .A meeting between the complainant and her colleague harvesters took place with the company on the 12.06.2020 .The minutes of the meeting – which were confirmed as accurate by the complainant , recorded that all employees were advised that they were welcome to take up their original position on their original contract as “ we need to start production in Ballyleague….The employees stated that 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”.

The complainant’s representative set out the ensuing correspondence between the complainant , the WRC and the respondent and asserted that the respondent had failed to furnish minutes of meetings with the mushroom harvesters and had failed to respond to a data access request.

Th complainant’s representative advised that the company offer to return to work “ came outside the statutory 4 weeks time limit for reengaging employees as provided for in Section 15(2)(d) of the Act as amended”.

It was submitted that the complainant had been given conflicting information by the company having first made her redundant on the 14.02.2020 and then threatened that her position would be terminated if he did not resume her employment with the company. The representative submitted that the complainant’s case was identical to that of four of her colleagues – all of whom had their complaints upheld by the WRC.

The respondent’s representative submitted as follows :

1.       Ms Marija Leontjeva (hereinafter referred to as “the Complainant”) commenced employment on 11 May 2009 as a  Harvester with Ballyleague Mushrooms (hereinafter referred to as “the Respondent”).

2.       The Respondent is a mushroom producer based from Moher, Lanesborough, county Roscommon.

3.       The Complainant has lodged the within complaint pursuant to s.39 Redundancy Payments Act 1967.

Facts

4.       The Complainant commenced employment with the Respondent on 11 May 2009. The Complainant remained employed by the Respondent until they ceased trading on 14 February 2020. During this time, the Complainant 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  E.K , Director of the Respondent, initiated an information and consultation process. The employees of the Respondent, including the Complainant were represented by A.L., Farm Supervisor of the Respondent. E.K. 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 Complainant failed to accept this offer.

9.       On 14 February 2020 the Complainant was informed that their position was redundant, this was confirmed by way of letter by  C.K., 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 Complainant on 29 May 2020 informing her that production would be recommencing in June 2020 and that her previous role was available to them.

12.   On 10 June 2020 Ms.MF of the Respondent Company invited the Complainant by email to attend a meeting on 12 June 2020. The Complainant attended such meeting in which the Respondent informed the Complainant that they would re-engage the Complainant as opposed to offer new employment and that the did not have the funds to make the redundancy payment but were in a position to offer the original position to the Complainant.

13.   The Complainant 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 15 September 2020.

14.   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

15.   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.

16.   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) 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[.]

 (e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.

At the hearing , the respondent confirmed that the Minister had not been notified of the redundancy of the complainant and her 56 colleagues and proceeded to argue as follows :- 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.

17.   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.

18.   The Complainant’s claim for pay pursuant to s.39 1967 Act should be dismissed.

Conclusion

19.   The Complainant has brought a claim pursuant to s.39 1967 Act.

20.   The within claim should be dismissed.

21.   The Respondent reserves the right to adduce further submissions at the hearing of the matters.

At the hearing the respondent’s representative clarified that the offer of redeployment made on the 6th.January 2020 related to 2 other mushroom farms – one sited at Sheelin which was 70km one way distant from the Ballyleague Plant and the other at Kildorough which is located 75km away from the Ballyleague plant.

The respondent’s representative clarified that the offer of re engagement made to the claimant at the 12th.June 2020 related to the Ballyleague plant and accepted  that the offer was outside of the statutory time frame provided for in the Act.

The respondent submitted that while the business was not currently trading , the resumption of the business was contingent upon the wider economic climate .In a post hearing submission the respondents representative advised that the business was not insolvent.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.The letter from the respondent to the claimant dated the 14th.Feb.2020 advising her of the termination of her employment was clear and unequivocal .I find the  offer of alternative employment made in January 2020 prior to the termination of employment was not reasonable given the 70-75km distance between the locations offered and the existing Ballyleague plant.The offer of resumption of employment at Ballyleague  which was first communicated to the complainant on the 29.05.2020 was significantly  outside of the statutory time limit set out in Section 15(2)(d) of the Act .

 Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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…

I find that the claimant’s contract was terminated on the 14th.Feb. 2020 and that as a result the claimant’s employment ceased.The claimant was accordingly dismissed by way of redundancy  and the offer to resume employment was made  outside the statutory time limit  set down in the Act .Consequently , I am upholding the complaint .

I find that the complaint  under the Redundancy Payments Act , 1967 is well founded and that the complainant is entitled to a redundancy payment based on the following criterio:

Date of Commencement : 11th.May 2009

Date of Termination :14/02/2020

Gross Weekly Pay :       €420 per week