Complainant

Respondent

Parties

Shellah  Cruise

Brown Bean Coffee Limited

Representatives

Kevin Bell BL instructed by Ahern Rudden Quigley Solicitors

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-00050526-001

09/05/2022

The Complainant commenced work for the Respondent on 4 September 2014 and was based in the Loreto School, Dalkey.  She was paid €12.00 per hour in her role as kitchen staff and worked for 35 hours per week. She is claiming she was dismissed from her employment on the grounds of redundancy in August 2021 during a phone call with the Respondent.

The Complainant finished working for the summer of 2021 at the end of May and had an expectation of returning to work in late August at the beginning of the school year, as was the usual practice.

In the second last week of August, the Complainant received a phone call from Mr O’Mahony informing her that he had lost the contract with the Loreto school in Dalkey and that she would not be returning to take up her position at the end of the summer as usual.  On 24 August 2021, the Complainant requested a letter for the Social Welfare, a reference as well as her P45 via text message. Further to this, she received a phone call from Mr. O’Mahony informing her that P45s were no longer available from employers but he did not mention the availability of any future work.

The following week, the school where she had been working, Loreto Dalkey, contacted the Complainant directly and offered her a position of Cook as they were bringing the catering in-house.  She accepted the position and commenced working directly for the school on 4 September 2021.

The Complainant stated that she subsequently requested a redundancy payment from Carraig Catering but was informed that the contract had been lost because she took up a catering position directly with the school. 

The Respondent stated that the Complainant was employed as a Catering Supervisor at its operations in the Loreto school, Dalkey. On 29 May 2021, the Complainant was placed on temporary lay-off due to the end of the school year, as was the normal practice. The Complainant did not return to work as a result of the restrictions imposed as a result of the pandemic at the end of the summer period as normal and the Respondent was waiting to see what would transpire during a time of great uncertainty, which was explained to the Complainant in a phone call in August 2021.

The Headmaster of the school contacted Mr Damien O’Mahony a director of the Respondent on 1 September 2021 and informed him that the school had decided to engage the Complainant directly to provide a direct catering service at the school. The Respondent was therefore of the view that the Complainant had left their employment even though there was no formal notice of resignation provided. Mr O’Mahony also highlighted in evidence that the school purchased all of the catering equipment from the Respondent in late September 2020, which his representative stated was an indication that a transfer of undertaking arose.

Further to this, in November 2021, the Complainant contacted Mr O’Mahony seeking a redundancy payment. Mr O’Mahony explained to the Complainant that her position had not been made redundant and she had chosen to leave her employment when she started to work directly for the school on 1 September 2021. He also stated that he had work available for her and offered her a new position at this time which she did not accept.

The Law

Section 7 of the Redundancy Payments Acts entitles a former employee to a redundancy payment in the following circumstances:

“if he is dismissed by his employer by reason of redundancy or is laid off or kept on short time for the minimum period”

Findings

While the Complainant asserted in evidence her belief that her position was being made redundant during a phone call with Mr O’Mahony in August 2021, I prefer the evidence of Mr O’Mahony and do not believe that the Complainant was informed that her position was going to be made redundant. Rather, I am of the view that she misunderstood the position and was going to be kept on temporary lay-off until such time as the position around the lifting of restrictions was clarified. I also noted crucially, in my view, that the Complainant made no reference to a redundancy payment in the text message she sent to Mr O’Mahony on 24 August 2021, wherein she requested her P45, a reference as well as a letter for social welfare.

In addition, I noted that the Complainant did not at any stage request a redundancy payment in respect of her period of lay off. Even if I was of the view that the request for a redundancy payment in November 2021 arose as a result of her period of lay off, which for the avoidance of doubt I am not, the Respondent immediately made her an offered of a suitable alternative role which she chose to ignore.

In light of all of the foregoing, I find that a redundancy situation did not arise in this particular instance.

Note: While the Respondent’s representative highlighted his view that the Complainant’s employment transferred to the school in Loreto Dalkey under the transfer of undertakings regulations, which meant that she was not entitled to a redundancy payment in any event, I do not make any finding in respect of this specific assertion.

I do not allow the appeal in respect of this complaint.