Complainant

Respondent

Parties

Juliette  Hallinan

O'Connor's Kenyon St Market, Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Stephen McNamara

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-00052054-001

02/08/2022

The complainant commenced employment with the respondent, a supermarket, O’Connor’s, Nenagh, in April 2001. She worked between 26 and 28.5 hours per week.  Her gross weekly pay was €496.  The complainant submitted a complaint form which was received by the WRC on 2 August 2022.

In her complaint form, the complainant had used an incorrect version of the respondent’s name. At the hearing the respondent stated that they did not object to the hearing going ahead. The respondent also stated that they were happy for me to change the name of the respondent to its correct formulation.

In her complaint from the complainant submitted that in September 2021, the respondent joined into a partnership with another entity which runs many large supermarkets. As a result of this partnership in October 2021, another company (company B) was introduced to take over all accounts/cash reconciliation from the complainant’s job role.  There was no consultation with the complainant about these changes by the respondent prior to the arrival of company B into the supermarket.  Very soon after the arrival of company B the complainant realised that 80% of her role was being outsourced.

The complainant submits that she met with the respondent on 13 January 2022, where he stated that there was only one job in the office going forward.  The complainant was deeply disappointed to hear her role had gone. The complainant submits that the respondent said that her role was gone and the option was redundancy. He stated that he did not have the money at that time to pay her redundancy.

At this point the complainant believed that only 20 % of her role remained. She was asked to provide training on payroll to two other colleagues, including one who was to remain on working in the office.

On 27 April 2022, the complainant submits that she had an argument with the respondent when she refused to work on the tills. Again, during this argument she was told she would get her redundancy but it would only be €16,000. On 31 July 2022, the complainant met with the respondent again and the matter of redundancy arose; the complainant submits that she was asked by the respondent to give him three weeks to put the redundancy plan into action.

On 23 July 2022, the complainant submits she met with the respondent and showed him information she had printed off to do with redundancy. She says the owner got extremely angry with her and said he would not be bullied into paying her redundancy., stating, according to the complainant, “I will never give you redundancy now.”

The complainant gave evidence under affirmation at the hearing.

In her evidence the complainant stated that she had worked flexible hours during her time with the respondent; it suited both parties.

In October 2021, an outsourcing company (company B) was hired to all elements of her role except payroll. In November 2021, a representative of company B told the complainant and the other colleague who worked in the office that their work was now going to be done by company B. Through November and December 2022, the complainant continued working.

In January 2022, the complainant stated that she instigated a conversation with the respondent about her future. The owner said that there was only one role remaining in the office, the complainant’s colleague in the office said she would stay, the complainant said she would go and the respondent agreed. He said he could not pay her redundancy and asked her to stay on in order to teach him and his son how to do the payroll. The complainant stated that she decided to stay on and she trained the two men in payroll.  She did as many things as she could but in reality, there was very little for her to do.

In April 2022, she stated that the respondent was becoming more and more frustrated and asked her to man the tills; she refused as she had started in the office and had always worked in the office, in an administrative role.

On 21 July 2022, the complainant and the respondent again discussed the situation.  The complainant stated that at this meeting the respondent asked that he be given three weeks to get the redundancy sorted out.

The complainant returned to work on 25 July 2022, after her holidays.  She says the respondent totally ignored her and this is when she decided she needed to take the matter to the WRC. She continued to attend the office from 09.00 to 17.30 each day.

Following a period of sick leave the complainant returned to work on 21 September 2022, she was due to go on pre-booked holidays the following day. The respondent said she could not do this. She says he knew she was putting her holiday pay through the system. 

On 21 September 2022, the complainant, although still on leave, returned to the shop office.  She informed the respondent that she had found another job (while on holidays) and would not be returning. However, the complainant agreed to cover on Sundays and most evenings until 6 October 2022, as her office colleague was going to be away.

The complainant stated that she finished up working with the respondent completely on 6 October 2022.

In cross examination, the complainant stated that she had always worked in the administration part of the business.  The complainant agree that she had never been told by the respondent that she was being dismissed nor had she ever been issued with a written dismissal note. She accepted that the end had come because she had resigned on foot of getting a new job and not because she was dismissed. The complainant accepted she had been applying for new jobs with other employers for some time before she finished working with the respondent.

She strenuously denied any allegation that she had done anything dishonest when she sorted out her holiday pay.

In response to questions from me the complainant stated that her pattern of work up to the arrival of company B was one in which she worked 9.00am to 5.00pm, four days a week, doing the company accounts, payroll and bank reconciliation statements. After company B arrived her work changed to preparing the books for year end and the transition to company B taking over.  Once the transition to company B ended, she only did payroll. The complainant also re-stated that when she met with the respondent in January 2022, he said she would be getting redundancy.

In conclusion, the complainant stated that she had been doing the accounts and all this work was taken away from he; she trained the respondent and his son on payroll as she believed she was going to be made redundant. When her job was gone, she was not going to start working on a till.

The respondent provided a detailed written submission.

The respondent submits that whilst there were changes made within the company and the operation of the store, the complainant was never made redundant. That there was no event to trigger any redundancy and that the complainant was (at the time of writing the submission at least) still registered as an employee of the respondent company.

The respondent submits that the complainant stopped attending work of her own accord in a situation where a position remained for her at the same location, at the same rate of pay, at the same flexible hours and doing similar work to that for which she was hired to do in the first place. The respondent contends that the complainant cannot claim redundancy.

The respondent submits that an employee cannot resign from their position and then force their employer to pay them redundancy. The respondent believes the complainant left her employment to take up other employment.

The respondent submits that the complainant joined the company in 2001.  About eight years ago she took over duties of completing the accounts and payroll.

The respondent submits that the business is transitioning into a franchise arrangement and as part of this process some of the accounts function being carried out by a central service, company B, and only a small number of accounts continue to be handled within the respondent’s office. Payroll is still handled internally.

The respondent submits that since these changes came about, the complainant has been complaining that “her job is gone”. The respondent submits that while some of her tasks may have changed it was always clearly put to her that her job remained and would be in the same location for the same rate of pay working the same flexible hours.  Her role would require some flexibility during the transition process it would ultimately include many of the tasks which she previously undertook.

The respondent submits that the complainant did not engage constructively with him and that she refused to work on the tills when asked nor would she consider any other tasks within the business when suggested to her. The respondent submits that at no time was redundancy ever considered or indeed raised by him.

The respondent submits that the complainant returned to work on 17 September 2022, after being on sick leave, and did the wages and paid herself all her due holiday pay.  The respondent believes she did this to ensure she was paid up to date before leaving her employment of her own accord and without notice to her employer.

The respondent submits that when asked to return to work to carry- out a specific task the complainant informed the respondent that she was only available on Sundays or evenings. When asked by the respondent had she got other employment, the respondent submits that the complainant replied she thought he would have worked that out sooner.

The respondent submits that the complainant wished to leave her employment whilst at the same time benefitting from redundancy.  The respondent submits that no redundancy event hasoccurred and that the employee cannot decide to claim redundancy or force her employer to pay her redundancy where their job is still available and they have not been let go.

The respondent submits that he did not consider making the complainant redundant as he wished to retain her in employment and he had plenty of work for her to do and over the years she had proved to be a dependable employee.

The respondent gave evidence on Oath at the hearing.

In his evidence the respondent stated that he had never offered the complainant redundancy.

He stated that the complainant kept telling him that her job had gone and he kept telling her that her job had changed.

The respondent stated that when he had asked the complainant to do the tills she had refused.

In response to questions from me, the respondent outlined the changes brought about by becoming a franchisee. He also stated that he had asked the complainant to do the tills previously but her answer had always been no, it was not a big issue.

In concluding the respondent submitted that the complainant had never been offered redundancy.

For the Redundancy Acts to apply there must be a dismissal of an employee. If the employee is re-engaged or renewed by the same employer under a new contract which essentially maintains the terms and conditions from the previous contract, then there is no dismissal and therefore there cannot be a redundancy.

 Section 15 of the 1967 Act, states:

Disentitlement to redundancy payment for refusal to accept alternative employment.

15.— (1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that 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 not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

Therefore, an employee is not entitled to a redundancy payment where an employer offers to renew a contract or to re-engage under a new contract and the terms and conditions, including as to the capacity and the place of employment are the same as those that operated under the original contract. In this instant case the complainant’s contract was never terminated.

In this instant case I find that no dismissal took place.  I accept that the owner did say that a redundancy would be forthcoming, the complainant was never dismissed, her role was not terminated and although the post she had worked in for some eight years had changed substantially, it still existed.  It was the complainant’s own decision to leave her employment and to seek work elsewhere. 

I disallow the complainant’s appeal.

Redundancy, dismissal,