Complainant

Respondent

Parties

Brian Mathias

Plaza Tallaght Hospitality Limited

Representatives

Not represented

Judy McNamara, IBEC

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-00043117-001

04/01/2021

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

CA-00043117-002

Duplicate of CA-00043117-001

30/06/2021

The complainant worked as a bar tender in Grumpy’s Bar in the Plaza Hotel from August 27th 2005.  He was promoted to the job of bar supervisor in October 2008.  On January 27th 2020, the hotel closed for refurbishment and all the staff, including the complainant, were laid off.  At the time, it was anticipated that the refurbishment would take three months; however, with the onset of Covid-19 in March 2020, construction workers were instructed to stay at home.  On the date of this hearing, April 29th 2022, the Plaza Hotel in Tallaght is preparing to re-open, having been closed since January 2020.  The complainant claims that he is entitled to be made redundant.  The respondent’s case is that the complainant’s job is available for him and they want him to return to work.

On February 29th 2020, having been laid off for four weeks, the complainant went to the Citizens Information Centre and he said that he was advised to apply for redundancy.  He said that he completed an RP9 form, for an employee who is laid off for more than four consecutive weeks to make a claim for redundancy.  The complainant said that he posted the form to a person who works in the HR department, who he knew only by her first name, Maria.  He said that he felt that he was entitled to redundancy because he was laid off and he had worked for the hotel for 15 years.  He said that he got no response to the RP9.

In his evidence at the hearing, the complainant referred to a letter he received dated March 17th 2020, from the HR manager, Maria Tierney.  Ms Tierney informed all the staff in the Plaza Hotel that, due to the Covid-19 restrictions, the hotel would remain closed until May 2020.  This letter was followed by other letters on May 29th, July 20th, September 18th and December 16th 2020, all sent to inform employees about the extension of the lay-off period due to the closure of the hospitality sector as a result of the Covid-19 pandemic.  The letter of December 16th 2020 confirmed that the employees would be laid off until March 31st 2021 at the earliest.  The complainant said that the hotel was using the Covid pandemic as “an excuse for everything.”  He said that no construction was done on the hotel for over a year.

The complainant said that because he was laid off in January 2020 when the refurbishment started on the hotel, he was entitled to claim job-seeker’s benefit and not the higher rate of the pandemic unemployment payment (PUP).  In December 2020, he got a letter from the operations manager in the Plaza Hotel, to support his claim for the PUP, but he said that he only ever got the job-seeker’s payment.

In April 2021, the complainant said that he went to meet Mr Bowe, the manager of the Tallaght Cross and the Plaza Hotels.  He said that he told Mr Bowe that he had applied for redundancy in February 2020, but Mr Bowe said that he wasn’t aware that the complainant had sent an RP9 to the company at that time.  The complainant gave Mr Bowe a new RP9, dated April 12th 2021.  Mr Bowe explained to the complainant that the government had instructed employers not to make people redundant who were laid off because of Covid-19.

At the hearing, the complainant said that in April 2021, he got a job with a security company.

In July 2021, the Plaza Hotel remained closed for refurbishment, but the complainant was invited to apply for a job in the Tallaght Cross Hotel.  In his evidence, he said that he had a contract of employment with the Plaza Hotel, not the Tallaght Cross Hotel, and that he was entitled to redundancy because he had been laid off from the Plaza.  In September 2021, the complainant was asked to return to work in the Plaza Hotel, which was still being refurbished.  He was asked to carry out security duties, to answer the telephone, open and close the car park for construction workers and to walk the building to monitor fire risks.  He said that this was not his job, and that he was contracted to work as a bar supervisor.

Summarising his position, the complainant said that he walks past the Plaza Hotel every day and that there’s no sign of it re-opening.  He said that he only works in the evenings, and that there were no suitable jobs for him in the Tallaght Cross Hotel. 

The complainant was cross-examined by Ms McNamara.  She asked him about an email dated August 5th 2021 from Mr Bowe in which he asked the complainant about an RP9 he claims to have sent to the hotel in February 2020.  The complainant replied that he met Mr Bowe twice in 2021 and he told him that he posted the RP9 to Maria in the HR department.

The Plaza Hotel closed for refurbishment in January 2020, but the construction work was halted at the start of the Covid pandemic.  In a letter of December 16th 2020, the cluster general manager, Declan Bowe, wrote to the employees to inform them that they would remain laid off until March 31st 2021 at the earliest.  At paragraph three of his letter, Mr Bowe referred to the uncertainty of the re-opening date, but he reassured the staff that they continued to be employees of the hotel:

“We would like to assure you that you remain employed by the company and that you are required to continue to make yourself available for work should we contact you to advise you that work is available.  We may need to extend your period of lay-off again however we will continue to review the situation based on the most up to date Government Guidelines and will keep you informed of the likelihood of your lay-off being extended.  As soon as we can get you back to work, we will give you as much notice as possible and expect you to return immediately unless otherwise agreed.”

In the respondent’s submission, Ms McNamara said that, in April 2021, the complainant met Mr Bowe in the Tallaght Cross Hotel.  The complainant indicated that he wished to apply for redundancy and he gave Mr Bowe a completed RP9 form.  Mr Bowe advised the complainant that legislation had been passed by the government in March 2020 which meant that an employee could not claim a redundancy payment during the emergency period associated with the Covid-19 pandemic.  The complainant did not inform Mr Bowe that he had sent an earlier form in February 2020 and the HR department has no record of an earlier RP9 being received.

In June 2021, when hotels were allowed to re-open, the Plaza Hotel was still at the early stages of refurbishment and it did not re-open.  The complainant was asked to apply for a vacancy in the bar and restaurant of the other hotel in the “cluster,” the Tallaght Cross Hotel, but he did not apply. 

On August 5th 2021, having received details of this complaint from the WRC, Mr Bowe wrote to the complainant and told him that they had no record of an RP9 having been sent to the hotel in February 2020.  He reiterated that work was available for the complainant in the Tallaght Cross Hotel and he encouraged him, as “a long standing member of the Team,” to try to resolve matters amicably. 

On September 27th 2021, Mr Bowe sent an email to the complainant to inform him that some staff were required to return to the Plaza Hotel.  He was asked to return on October 4th 2021, in a role on the reception desk, to act in the capacity of security and fire officer during the refurbishment.  Mr Bowe said that this would be a temporary change of role until the bar was ready to open.  The complainant did not reply and Mr Bowe wrote again on September 30th, as he had been informed by a staff member that the complainant had taken up a job elsewhere.  He asked the complainant to “communicate your intentions in writing.”  On the same day, the complainant sent Mr Bowe an email and he said that the offer of the job was not suitable.  He summarised his response to Mr Bowe’s offer as “too little too late.”  He said, “I’m asking for redundancy.”

Mr Bowe replied on October 1st and asked the complainant to clarify his intentions.  The complainant  didn’t reply and, on January 13th 2022, he was requested to return to work in the Plaza Hotel on January 24th.  He was again asked to take up a job on reception to act in the capacity of a security officer and fire warden.  He did not reply.  On March 21st 2022, he was asked to return in May 2022, to his old job as a bar supervisor.  When he got no reply, Mr Bowe sent a text message to the complainant in April, asking him if he intended returning to work.  The complainant replied that he had started in another job and that he would think about it.

In his evidence at the hearing, Mr Bowe said that the Tallaght Cross Hotel is five minutes’ walk from the Plaza Hotel and that the complainant could have taken a job there on the same pay and conditions and the same hours that he worked in the Plaza.  He was offered security work in the Plaza which he also rejected.  Mr Bowe said that work is available in the Plaza in the weeks before it is due to re-open, as the bars will have to be stocked and the building prepared for customers.

Was the Complainant’s Job Redundant?

The circumstances in which an employee may claim a redundancy lump sum are set out at section 7 of the Redundancy Payments Act 1967 – 2014 (“the Act”) and can be summarised as follows:

(a)  The business has closed or the place where the business was carried out has changed;

(b)  There is a requirement for fewer employees in the business or at the place where the business was carried out;

(c)  The employer has decided that the work that that was done by the employee could be done by fewer or no employees;

(d)  The job will be done in future by a person who is more qualified or trained than the employee;

(e)  The job will be done by a person who is also capable of other work that the employee is not qualified or trained to do.

While the complainant’s case for redundancy would appear to fit with the definition at sub-section (a), his circumstances are complicated by the fact that the place where he was employed closed temporarily for three months for refurbishment on January 27th 2020.  As we know, six weeks later, on March 13th, the Covid-19 pandemic caused a complete lock-down of society, with the impact felt most severely by the construction and hospitality sectors.  The Plaza Hotel, where the complainant was a bar supervisor, is due to re-open in May 2022.

It is the complainant’s case that, in accordance with section 12 of the Act, he applied for a redundancy payment in February 2020, when he had been laid off for four weeks.  This seems to me to be a strange course of action, when his employer had informed him that the refurbishment would last for three months.  The complainant said that he posted an RP9 form to the Tallaght Cross Hotel, but there is no evidence of such a form being received.  If they had received the RP9 in February 2020, I am certain that, in accordance with section 13 of the Act, the respondent would have issued the complainant a counter notice and would have notified him of an anticipated return to work date when the refurbishment was completed.  I also find it strange that, having got no response to the form RP9 which he said he sent to the respondent in February 2020, the complainant didn’t do anything when he got no reply.  More than a year later, on April 12th 2021, he met the cluster manager and gave him what he claimed was a second version of the RP9.

The complainant’s job was not redundant as a result of the closure of the Plaza Hotel for refurbishment, and it is not redundant as a result of the closure arising from the Covid-19 pandemic.  While the complainant was laid off for much longer than anyone anticipated, the objective of the government supports and financial incentives during the pandemic was to avoid job-losses and to protect jobs for the longer term.  If the respondent had made the complainant’s job redundant because of the interruption to their business during the pandemic, and, if he had brought a complaint under the Unfair Dismissals Act, I would have found that his dismissal was unfair.

The problem that confronts me is the complainant’s desire to be dismissed and to claim a redundancy lump sum, as against his employer’s position that his lay-off was extended by the Covid-19 pandemic.  In the context of the pandemic, the complainant’s case for redundancy is curtailed by the amendment at section 12A of the Act, inserted by the Emergency Measures in the Public Interest (Covid-19) Act 2020:

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 due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

I accept that the complainant suffered financially as a result of being laid off.  I also accept that the timing of his lay-off in January 2020 was unfortunate, because he was limited to claiming job-seeker’s benefit rather than the PUP.  To his credit, he did a training course and by April 2021, he was working in a different industry.

Findings

The insertion of section 12A in the Redundancy Payments Act means that an employee may not claim an entitlement to a redundancy payment when they have been laid off during what is referred to as the “emergency period” related to Covid-19.  The emergency period ended on September 30th 2021.  This complaint was submitted to the WRC in January 2021, when the hotel where the complainant worked was closed because of the pandemic.  As he was laid off during the emergency period, he is not entitled to claim a redundancy payment.

Apart from the provisions of the new section 12A of the Act, it is apparent that the complainant’s job is not redundant.  At all times, during the early refurbishment period from January to March 2020, and afterwards during the Covid lock-down, his employer repeatedly communicated with him in writing to reassure him that he was still an employee.  Although he was laid off for an extended period from January 2020 until after he submitted this complaint to the WRC in January 2021, his job remains available for him to return to, and his employer has requested him to return.

I understand the complainant’s grievance at the fact that he was laid off before the Covid-19 restrictions.  I accept that this had an impact on his entitlement to the PUP.  While this clearly created some hardship for the complainant, it is not the fault of his employer, and it does not support his case that he is entitled to a redundancy payment.  In April 2021, the complainant started working in a different job.  I note that, in July 2021, he was offered a job in a location five minutes’ walk from the Plaza Hotel and that he had no interest in that job.  If he had been so inclined, he could have been back working at an alternative job in the Plaza Hotel in October 2021, but he declined that job also. 

In conclusion, I find that the complainant’s job is not redundant and that, while he was laid off for an extended period, he is prevented by section 12A of the Redundancy Payments Act from claiming a redundancy lump sum.

I decide that this complaint is not well founded.

Redundancy, lay-off, emergency period, section 12A of the Redundancy Payments Act 1967