Complainant

Respondent

Parties

Carla Nicoleta  Prelicz

Noel Recruitment Industrial Limited

Representatives

Bernadette Melbourne Citizens Information Service

 Dave Kearney, HR Director, Noel Group

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-00038440-001

30/06/2020

Ms. Prelicz was employed from January 1st, 2014 to July 3rd, 2019. At the point of her employment ending (on July 3rd, 2019), she worked a 37.5 hour week, on gross pay of €392 and net pay of €330.35.  She began her employment with Transline U.K., which transferred to Assist Ltd. in December 2015, which in turn transferred to Noel Industrial Recruitment Limited in December 2017. During this time the complainant worked as a Quality Controller with SBE Logistics Ireland (on a continuous basis) from Mar 26th, 2014 until July 3rd, 2019. On the latter date she was told not to report to work and placed on lay off. Ms. Prelicz subsequently engaged the services of the Citizens Information Service for advisory purposes. Following a phone conversation between this service and Noel Recruitment (on July 12th, 2019), Ms. Prelicz received four discrete offers of alternative employment. However, Ms. Prelicz deemed these offers to be unsuitable, due to the relative travel distance involved, the unsuitability of night shift work and their temporary status. RP77 and RP9 documents were subsequently submitted to the respondent on the complainant’s behalf. A response was received from the respondent, albeit no new work options ensued. Consequently, Ms. Prelicz instructed the Citizens Information Service to lodge an appropriate complaint to the W.R.C., seeking the payment of her (alleged) statutory redundancy payment entitlement of €4,531.52.

Accordingly, this case was heard by the Adjudication Officer in line with the W.R.C.s guidelines for remote hearings and in line with (part-heard and other) case guidelines further to the Supreme Court’s Zalewski judgement. With reference to same, parties advised the Adjudication Officer that there was no need for the appliance of an oath/affirmation, as their differences were associated with contrasting interpretations of the evidence, rather than in the evidence itself. Related thereto, the respondent’s representative confirmed that he is not an owner or manager of the respondent company.

Carla Prelicz claims that she was unfairly denied a redundancy payment under the Redundancy Payments Act 1967, having worked for her employer in the same position within the same company continually for a period of 5 years and 3 months. The Redundancy Payments Act 1967, allows for a minimum entitlement to redundancy for employees who have a set period of service with the employer: Claimant’s Start Date: Mar 26, 2014 - Claimant’s Finish Date: July 3, 2019

The respondent operates a Recruitment Agency with an office located in Santry Business Park, Swords Road in Dublin. During her time in employment, there were three separate transfer of undertakings, with Noel Recruitment commencing on the Jan 01, 2018. Having secured a fulltime role through the Respondent on March 26, 2014 the claimant remained working in the same role, as a Quality Controller within the same company from March 26, 2014 until July 3, 2019, 5 days p/w full-time, with no gaps in employment.

The distance from the Claimant’s home in Celbridge to her place of work in Greenouge Business Park, Rathcoole was 8.6km. On July 3, 2019, she was informed via email that she should not return to work the following day, as there was no work available. Following this, on July 11, 2019 she wrote to the Respondent asking for clarity on the situation, whether the redundancy was temporary or permanent and whether redundancy would apply. On July 11, 2019, the Respondent wrote to the Complainant via email to state that the previous position that she had held had now ended and that the Respondent was looking for other roles for her that may be suitable. On July 12, 2019, she was contacted by the Respondent and advised of four roles which were available through the agency. She was asked to review these job specifications and to revert to the Respondent. All were temporary roles, would have involved an interview process were located quite some distance from the claimant’s home which would have substantially increased the cost of travel to and from work.

As noted above, the distance from the claimant’s home in Celbridge to her previous place of work in Greenouge Business Park, Rathcoole was 8.6km. So, she liaised with the Respondent via telephone and email with regard to these particular roles, deeming them to be unsuitable (see summary below).

Job 1: Location Naas - Reason role was unsuitable - Distance-19.3 km. from claimant’s home & because role was temporary.

Job 2: Location Naas - Reason role was unsuitable - Distance-19.3 km. from claimant’s home & because role was temporary.

Job 3: Location Leopardstown - Reason role was unsuitable - Distance-32.5 km. from claimant’s home & because role was temporary.

Job 4: Location Tallaght - Reason role was unsuitable - Distance-17km. from claimant’s home & because role was temporary nightshift

No further job specifications/offers were sent for review after July 12, 2019.

In November 2019, Carla sent an RP77 to the Respondent seeking a redundancy payment. There was no response from the employer. On Feb 20, 2020 - following a lack of response to the RP77 - a letter was sent from the Citizens Information Service to the Respondent that included an RP9. The Respondent did not respond.  On June 30, 2020 - having received no reply to the RP9 - the Citizens Information Service sent a further letter to the Respondent stating that a complaint would be made to the W.R.C. seeking the statutory redundancy payment.

From the legal perspective, the Claimant contends that Section 7 (1) of the Redundancy Payments Act, 1967 states:

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.

Related thereto, the claimant’s employment ceased by reason of redundancy on July 3rd, 2019. The employer did not make any offer of alternative employment until the Ms. Prelicz sought

clarity on her employment status. Further to this, as outlined above, the “offers of employment” were not reasonable offers of employment as they were:

 Temporary positions that required interview.

 Positions that required significant travel for Ms Prelicz.

 Positions that were not similar to her redundant role.

Associated therewith, the Claimant drew the W.R.C.s attention to 4 determinations (from the W.R.C. and the Labour Court) in which an employee’s position was made redundant and the offers of alternative employment were deemed to be unreasonable.

Case 1: RPD208 - The Court found that the Complainant’s employment was terminated by reason of redundancy in circumstances where the offers of alternative employment made by the

Respondent to the Complainant could not be considered suitable alternative employment

having regard to their location etc. Therefore, the Court determined that the Complainant was entitled to a statutory redundancy payment.

Case 2: ADJ-00026800 - The Complainant was employed by a recruitment agency and on being laid off had been employed by the same employer for over 104 weeks. She maintained that she was entitled to receive a redundancy payment, although she was offered alternative work by the agency, it was not a suitable alternative employment as she would be paid less. The

Adjudication Officer found that a redundancy situation did exist, and the complaint was well founded, ordering the respondent to pay the statutory redundancy sum due.

Case 3: RPD1813 - This case involved a claim that the Complainant had been made redundant and should be entitled to a redundancy payment under the Act.  The respondent company accepted in Court that the offer of work in Dublin was not a reasonable offer of alternative employment but submitted that no contract of employment had ever been furnished to the Complainant. The Court found that the Complainant's employment had been terminated following the loss of the contract held by the respondent company. The Court held that no reasonable offer of alternative accommodation had been made and concluded that the Complainant's employment had been terminated by reason of redundancy. Accordingly, the Court determined that the Complainant should receive a redundancy payment in accordance with the Act.

Case4: ADJ-00015084 - The Complainant worked in an agency for 10 years and was placed in the same position. The work was coming to an end, but the agency failed to engage with the Complainant or offer alternative employment. The Adjudicator found in the Complainant’s favour stating that "Iam absolutely satisfied that no real or meaningful effort was made to ensure that theComplainant knew that there was an intention to keep the Complainant on as a long

standing and valued member of staff. The Complainant was advised that her job was to end

and thereafter no meaningful communication was made. I do not accept that the

Respondent should be allowed to rely on one short and ambiguous message of the 16th of

March as evidence of their Bona Fides. The Complainant was simply cut adrift on the 28th of

March 2018 and the Respondent only re-engaged when forced to after receiving a Solicitors

letter. I am satisfied that the Complainant’s position was gone, and she was not given or advised of any alternative work before the termination of that employment. The Complainant was

therefore made Redundant". The Complainant contends that this case evidences the respondent's responsibility to engage with an employee and to offersuitable, reasonable offers of alternate employment. Notably, Noel Recruitment only offered alternate employmentwhen the Complainant contacted them. For good reasons, these were deemed unsuitable and no furtheroffers were provided. All correspondence in relation to redundancy was unanswered by the

respondent.

The Respondent contends that they had 17 candidates working in SBE on a temporary basis when the company went into liquidation. All 17 finished on the 03/07/2019, when the Respondent was notified (at 5 p.m.) that these roles were now redundant. The claimant was then on layoff awaiting confirmation of other job offers. Seven of the 17 employees went forward to work

with other clients of the Noel Group and the remainder choose not to take up alternative

positions. The Respondent explains that they were not afforded the notice period required by the client under the relevant Act. Furthermore, the Respondent promptly made a number of offers of alternative employment with different clients which the claimant refused. She also made it clear she did not want to be considered for other employment as she wanted her redundancy payment.

The Respondent draws attention to Section 15 of the Redundancy Payments Act:

15.—(1) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal —

(a) his employer has offered to renew that employee's contract of employment or to reengage

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 not differ from the corresponding provisions of the contract in force immediately before his dismissal,

(c) the renewal or re-engagement would take effect on or before the date of dismissal, and

(d) he has unreasonably refused the offer.

(2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(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 his dismissal,

(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 dismissal, and

(e) he has unreasonably refused the offer.

(3) Where a person who is entitled to a weekly payment has been offered suitable

employment by the Employment Service and has unreasonably refused that offer, that person

shall be disqualified from receiving a weekly payment for a period not exceeding six weeks.

The respondent notes that on the 12th July the Complainant was asked if she wanted the Respondent to put her C.V. forward for a 6 month contract as a receptionist in Naas (which she refused) as she was looking only for a permanent position. Yet again, on the 12th July the claimant was asked if she wanted us to put her C.V. forward for a full-time position in Leopardstown as a Technician (which she also refused).

As the role of a recruitment agency is to locate work for the claimant (which the Respondent contends she unreasonably refused), the Respondent has no mutuality of obligation to provide work for any agency staff who do not wish for the agency to place them. It is also relevant that the claimant registered with the agency as a temporary agency worker and she is not a full-time direct employee of the agency. Hence, between placements no obligation of mutuality exists

Having reviewed the written submissions and the oral presentations, the Adjudication Officer finds it to be relevant that the complainant was made 4 job offers that – with supporting reasoning – were adjudged to be unsuitable. These offers coincided with the claimant’s inquiry/complaint to the Respondent re. her redundancy status. No other job offers ensued from the Respondent. It is also notable that the claimant attempted (unsuccessfully) to subsequently communicate with the Respondent. With regard to the claimant’s representative’s legal argument, it is notable that the Respondent accepted his counterpart’s ‘take on the law’ and accepted that ‘redundancy is due under the Act’. With regard to the argument re. the claimant’s (permanent v temporary) employment status, even if this is accepted, the Respondent is still obliged to engage in meaningful discussions with regard to suitable alternative employment (as per Case No. 4 above). However, there is no evidence of this. Furthermore, it is notable that when asked: (i) to supply case precedents in support of his/Respondent’s case; (ii) to respond to the case precedents presented by the Complainant’s rep. (see above) and to (iii) raise any other legal points deemed relevant, the Respondent had no response. It is also relevant that both parties are in agreement that the Complainant was 5 years in the job/role and – even if adjudged to be a temporary employee - is not precluded from the provisions of the Redundancy Payments Act, 1967. At the hearing’s close it is also notable that the Respondent was afforded – but did not avail of – the opportunity to respond to the Complainant rep.’s arguments that: (i) the Respondent did not engage with the claimant; (ii) the Respondent did not make suitable alternate job offers; (iii) the job offers that were made came as a result of the claimant making contact with the Respondent; (iv) the Respondent did not subsequently communicate with or agree to look for other jobs for the claimant and was effectively ‘cut adrift’ by the Respondent. In the assessment of the case, it is also pertinent that in the case of Cinders Ltd. v Byrne RPD1811, the Labour Court held that the issues of relevance in such scenarios were:

(i)                  the suitability of the offers of alternative employment made; and

(ii)                whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances.

Relying upon Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, the Court held that ‘the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view’.The legal test set out in Cinders Ltd v Byrne and Cambridge & District Co-operative Society Ltd v Ruse is therefore that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective perspective of the employee.Accordingly, the Adjudication Officer had regard to the complainant’s and respondent’s cases vis-à-vis this test (see above) in reaching a decision.

The claim is well founded, upheld and the (statutory redundancy sum) of €4,531.52 is awarded to the claimant. The Respondent is now ordered to make these payments to the Complainant within 42 days from the date of this notice.

Redundancy     Agency Worker