ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040762
Parties:
| Complainant | Respondent |
Parties | Sean Roche | Molum Transport Limited |
Representatives |
| Kenny Stephenson Chapman LLP |
Complaint:
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-00052046-001 | 02/08/2022 |
Date of Adjudication Hearing: 14/03/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was not represented and gave evidence under affirmation. Mr Dermot Lyons, witness for the respondent, gave evidence under affirmation. It was agreed between the parties that the correct name of the respondent was Molum Transport Ltd.
The hearing was held in public, and the parties were made aware that names would be published in this decision.
The parties submitted documents in support of their respective cases in advance of the hearing.
Background:
The complainant contended that his position was made redundant and that he is entitled to a statutory redundancy payment. The respondent submitted that there was no redundancy situation and contended that the complainant resigned his position. |
Summary of Complainant’s Case:
Evidence of the Complainant The complainant worked for over 19 years with the Lyons Group as a truck driver. In 2011 he received a redundancy payment and was offered employment with a new company within the Lyons Group. In 2011, 2012 and 2014 the complainant was issued with a new employment contract. The 2012 contract referred to the complainant’s job title as “Driver and General Operative”. The 2014 contract referred to the complainant as “Driver and Operator”. The complainant submitted that he was a truck driver and that he never performed any other duties outside of truck driving. The complainant strenuously argued that he was not and never worked as an operator. On 22 July 2022 the complainant was advised in writing that the company had terminated one of its sub-contracts and as a result the complainant would be placed on short-time. The complainant submitted that short-time working was completely unacceptable to him because the work he would be required to do may not be truck driving, and because of the substantial loss of income. The complainant requested a redundancy payment. This was refused by the respondent. The complainant then availed of two weeks annual leave he had prebooked. One week into the leave, the complainant resigned. The complainant outlined that there was no contact from the respondent following his resignation. He had hoped that the respondent would pay him a redundancy payment given he had been employed for over 19 years with the respondent. In cross-examination, the respondent opened a contract dated 6 January 2016, and the complainant acknowledged that he signed that contract and that this contract incorporated the Company Handbook. The complainant accepted that his job title was “Driver and Operator”. The complainant accepted that there was a “Flexibility Clause” and a “Redundancy Policy” within the Handbook and accepted that the Redundancy Policy provided for exploring short-time as an alternative to redundancy. The complainant accepted that he gave permission to the respondent to discuss his employment with the company taking over the sub-contract. The complainant confirmed that he spoke to this company about joining them and added that he did so as he had no intention of continuing to work with the respondent. The complainant confirmed that he was hired by that company shortly after his resignation from the respondent company. The complainant confirmed that he did not like the terms of the proposed short-time working as he felt he was being forced into a job he did not want; he was angry about it and that is why he resigned. The complainant felt as the sub-contract and the truck was gone, that his job was gone. The complainant agreed that the respondent’s letter of 22 July 2022 was not notice of termination and agreed that he was confident that the company who was taking over the contract would employ him. It was put to the complainant that he was not aware of the provisions of s 12 of the Redundancy Payments Acts 1967, to which the complainant responded “OK”. The complainant confirmed that he did not utilise the grievance procedure. |
Summary of Respondent’s Case:
Evidence of Mr Dermot Lyons The complainant worked for the group for 19 years and there was never an issue with his performance. Contracts of employment were amended for several staff to include the word “Operator” so that the company could ask an employee to do tasks not immediately related to their primary role. The Group split into several separate legal entities in 2011. As part of that process the complainant received a redundancy payment. In 2022 the company terminated a sub-contract as the sub-contract was loss making. The termination of this sub-contract impacted the complainant’s daily tasks. The complainant was advised of the termination of the contract by letter on 22 July 2022 and notice was given to the complainant that he would be placed on short-time while the respondent explored other business opportunities. One prospective contract was in discussion at that time and if that contract was secured the complainant would have resumed his truck driving duties within a reasonable period. The respondent stated that the short-time was a stop gap while the respondent explored other options. Truck drivers were extremely hard to source. With the consent of the complainant, the respondent also reached out to the company that was taking over the sub-contract to see if they were interested in hiring the complainant and another colleague. The respondent received an email of resignation from the complainant on 4 August 2022. The respondent replied to that email on 5 August 2022. In his email the respondent advised the complainant that the work he would be required to do while on short-time would be predominately driving, and he advised of a contract the respondent hoped to secure, however, the complainant did not rescind his resignation. The complainant asked the witness why did he not engage with him verbally regarding his request for a redundancy payment, to which the respondent replied that he was doing his best to keep people in employment. Closing Remarks The respondent’s position in closing was that the complainant resigned his position and accordingly is not entitled to a statutory redundancy payment. |
Findings and Conclusions:
Section 12 of the Redundancy Payments Act 1967 (as amended) provides for the right to a redundancy payment by reason of lay-off or short-time as follows: “(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless— (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.” It is common case that the respondent terminated a sub-contract as it was no longer viable for the business and as a result the respondent gave notice to the complainant of an intention to place him on short-time. It is also common case that the complainant did not in fact commence working short-time. In evidence the respondent detailed the options being explored to reinstate the complainant’s working hours and driving duties as soon as practicable. In the respondent’s letter of 22 July 2022 to the complainant (opened by both parties during the hearing), the respondent clearly stated that it would endeavour to continue with the complainant’s employment. I accept the evidence of the respondent that the proposed short-time was intended to be a temporary measure to facilitate the exploration of alternatives. However, the proposed short-time working was clearly unpalatable to the complainant, and before the short-time could even be trialled, the complainant resigned from his employment. I agree with the submission of the respondent that, as the complainant resigned from his employment, it is therefore not necessary for me to consider whether the complainant complied with s 12 of the Redundancy Payments Act 1967. I find that the complainant resigned from his employment, and therefore the complainant is not entitled to a statutory redundancy lump sum payment. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.
I disallow the complainant’s appeal. |
Dated: 5th April 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Statutory redundancy payment. |