ADJ-00037280

Complainant

Respondent

Parties

Liam  Guilfoyle

Liams Bus Hire

Representatives

  Self

Kerrie Dunne Collins Crowley/Andrew Whelan BL

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-00048670-001

15/02/2022

The case was heard at Lansdowne House Dublin 4.

On or about the 31st of December 2021 the Complainant served notice as provided for under the Act to the Respondent of his intention to seek a redundancy payment in respect of lay off. 

The Employer contests liability to pay the Complainant redundancy on the grounds that within four weeks of the date of service of the notice the employee would commence a period of employment of not less than 13 weeks during which the Complaint would not be laid off or placed on short time work. 

The Complainant commenced employment on or about February 2007 as a bus driver. His rate of pay is €17.00 per hour, and he worked approximately 40 hours a week prior to lay off.

The Complainant is not able to work nights based on a reasonable ground regarding a disability.

Prior to Covid lockdown he had worked a regular pattern which meant he commenced work at about 5.30 am to 8.30 am and then would commence work again about 3.30pm to about 8.00pm.

His employer at that time had contracts with Multinational Companies and his work mainly entailed driving to and from these sites with some school bus work as well.

Due to Covid, this work pattern was severely disrupted.

Initially the Complainant was laid off and subsequently he managed to find alternative work with another Bus Company. He also did some Film bus work for the Respondent.

The Respondent employer lost the Multinational Contracts and arising from the lifting of Covid restrictions has built up his business gradually.

The mix of contracts are School Runs and other work that entails evening work.

The shift pattern of this work is fundamentally different to what he has worked previously.

The shift patter commences later in the morning as it links to School opening times and then also involves afternoon work and possibly late evening work serving other contracts.

This is a fundamental change to the Complainant’s contract terms and conditions as previously he started at 5.30 am and that pattern suited him much better and allowed him to maintain contact with friends and support groups.

The Respondent’s business severely contracted arising from Covid and the changing requirements of clients.

The business has gradually begun to grow again and replace lost contracts.

The Complainant did return and drive for Film crews and when that work ended, he returned to fixed term contracts with another bus company.

The Respondent replied to the Complainant in a letter dated the 10th of January 2022 and stated that the Complainant would be employed on similar terms as previously. It stated at the hearing that it would guarantee a weekly salary of €600 per week and would guarantee that payment for hours worked within a band range of 30-40 hours. That in turn matched the previous terms of the employee.

The fact is that the business while growing is not at its previous level of business and therefore the number of hours required to be worked could be less; however, the payment would mirror what on average was paid pre Covid.

Evidence under oath was given by both the Complainant and the owner of the business Mr Liam Keating.

The Respondent maintains that the hours while they did vary were like what the Complainant worked previously. There was a degree of flexibility required now as there was in the past based on the changing needs of customers. However, the hours worked were similar, and they varied previously, the start was later to meet school run requirements and the hours worked in the afternoon were similar. The client base did change as large multinationals arising from the changes brought by Covid no longer required the same service at the same time.

The Complainant would not be required to work evening shifts where he would be bringing clients to social events such as concerts and picking them up.

It is argued by the Respondent that allowing for the requirement for reasonable flexibility around the scheduling of hours the contract terms and conditions have not changed fundamentally.

The Complainant stated that his hours had changed and were fundamentally different to what he worked previously and therefore he was entitled to be paid Redundancy.

Section 13 of the of the Redundancy Payments Acts 1967(Act) states:

Right of employer to give counter-notice.

13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

The counter notice was signed the 10th of January 2022 and the date of service on the notice is 31st of December 2021.  The counter notice should have been returned within seven days after the service of the notice. Therefore, the counter notice appears to be invalid.

However, the notice to be valid requires that the Complainant be on lay-off or on short time work.

The Respondent employer under oath has stated the Complainant was offered full-time work in October 2021 on €600 and while he commenced for 1 day; requested that he could leave temporarily to return to another Company to fulfil a fixed term contract.

From October 2021 the Respondent employer stated that no lay-off or short time work was in place. The employee voluntarily requested temporary leave and was facilitated. In December 2021 the Respondent employer stated that the employee again was offered the same terms as he had previously and declined to return to work.

Central to this dispute is whether the terms were changed so that they amounted to a fundamental change in the contract that provided for the Complainant to state that his role had been made redundant.

The Act states that there is a right to redundancy when:

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 F18[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,

The right to redundancy as set down in the Act has not been met as the Complainant has not been dismissed from his job.

The Complainant has been offered the same rate of pay as he previously had and full-time work within a reasonable band of hours that reflects the nature of the business. His rate of pay has been guaranteed at the same level as pre Covid. The Complainant is not on lay-off or short time work. Rather he has decided to fulfil other work for another company. The Respondent acquiesced to that request; however, that does not equate to lay-off. Rather they have approved special leave. That does not mean that his role no longer exists. The Complainant has decided that the new start time and the mix of work does not suit him. He also has gained alternative employment. The circumstances of this case do not equate to a redundancy.

At section 11 the Act defines what is meant by short time and lay-off:

Lay-off and short-time.

11.— (1) Where  an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.

The employee has not been dismissed for a reason specified at the section 7(2) or placed on lay-off or short time work.  In these circumstances the complaint is not well founded. While the time of commencing work has changed and the mix of contracts now primarily relates to schools, the essential nature of the work as a bus driver has not changed. The hours are similar and while they may vary that was always an implicit term of this contract. In these circumstances it cannot be said that the employee has been dismissed; or that he is on lay-off or on short-time work. As none of the conditions required under the Act regarding the right to a redundancy payment have been met the complaint is not well founded.

The Complainant’s appeal of the Respondent’s decision not to agree to a claim for redundancy is disallowed as no redundancy has arisen in this case.

The right to a redundancy payment and the necessary conditions that must be met prior to establishing a right to a redundancy payment as set down in the Act have not been met. This is so as the Complainant is not on short time or on lay off or has been dismissed under any of the grounds that are deemed to constitute a redundancy.

In these circumstances the complaint is not well founded.

While the start time of commencing work has changed and the mix of contracts now primarily relates to schools, the essential nature of the work as a bus driver has not changed. The hours are similar and while they may vary that was always an implicit term of this contract. The hours of work are still within the band that existed previously, commencing with a morning start, followed by free time and then commencing work in the afternoon.  In these circumstances it cannot be said that the employee has been dismissed for reasons as specified at section 7(2) of the Act and is therefore entitled to redundancy. It is the right of the Complainant not to work these hours; however, there is no right to seek a redundancy payment based on that free choice. The Complainant sought special leave to work for another company and was given permission to do so. That is all that has occurred in this case. There is work available to the Complainant that he has chosen not to fulfil.

The Complainant’s appeal of the Respondent’s decision not to agree to a claim of redundancy is disallowed as no redundancy has arisen in this case and the complaint is not well founded.

Claim for redundancy