Complainant

Respondent

Parties

Seamus  Stapleton

O'Brien Facilities Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Thomas Dowling Hogan Dowling McNamara Solicitors LLP

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-00054008-001

05/12/2022

The Complainant commenced employment as Machine Operator in July 2015.  The Respondent provides facility maintenance services to various clients.  His employment with the Respondent ended on 11 August 2022.  The Complainant worked 40 hours per week and was paid €823.00 gross per week.  A complaint form was received by the WRC on 5 December 2022. A hearing of the case took place on 30 May 2023, by way of a remote platform.

The Complainant claims that he is due a redundancy payment.

The Complainant submits that he was told on 2 August 2022, that there was no further work for him and that he was being let go.  He was paid two weeks’ notice and all his holiday pay. The Respondent told him that he might have work in Dublin, but it would not be permanent work.  The Complainant rang the Respondent about his redundancy payment and the Respondent said to him that he had left of his own accord.

The Complainant gave evidence on Affirmation at the hearing.

The Complainant stated that after returning from holidays in August 2022, he was told by Mr O’Brien, the Company Director, that there was no work, except for possibly some work in Dublin.  Working in Dublin did not suit the Complainant, though he had worked in Dublin twice in seven years.  Most of his work was local and he came home most nights. The Complainant believed Mr O’Brien was trying to get him to resign.

The Complainant stated that Mr O’Brien said he would pay the Complainant and another employee, Mr David Mullane, two weeks’ notice.  Following this the Complainant tried to contact Mr O’Brien, but he could not get through to him.  He did speak with the next in command and asked him about redundancy. He was then contacted by Mr O’Brien who told him that this was not a redundancy situation and that the Complainant and his colleague, Mr Mullane, had left of their own accord.  The Respondent wrote to the Complainant saying he should return to work, however, the Complainant felt he could not do so after the way he had been treated.

In cross examination the Complainant stated that he had worked mostly in the Munster region, though at times he had worked in Dublin and Galway.  The Complainant denied he was offered work outside of Limerick and had decided to resign., he stated that “he (Mr O’Brien) said there was no work.”  The Complainant stated that the messages sent by Mr O’Brien saying that the position was open was only him, “covering his tracks.”   The Complainant re-iterated that he had never resigned.

The Respondent provided a written submission.

The Respondent submits that the Complainant was employed as a general operative with the Respondent company. The Respondent’s clients are located throughout Ireland and therefore the Respondent requires its employees to work in different locations as and when required. This is reflected in the mobility clause contained in the contract of employment which specified that the Complainant would be required to work in various locations.

The Respondent submits that in August 2022, the Complainant was informed that he would have to do some work in the Dublin area on a temporary basis in addition to working in Limerick. The Complainant informed the Respondent that he would rather not do this work and elected to resign from his employment. The Complainant tendered his resignation to Mr Trevor O’Brien (Company Director) in person and in the presence of Mr David Mullane (another employee of the Respondent who resigned at the same time as the Complainant). The Respondent refutes in the strongest terms, the Complainant’s assertion that he was informed that there was no further work and that he was being let go.

When the Complainant subsequently sought redundancy payment from the Respondent by way of a telephone call, a text message was sent to him from Mr O’Brien, to inform the Complainant that if he did not wish to resign, he was expected to return to work immediately. Upon receipt of correspondence from the Complainant’s solicitor on or around 12 September 2022 wherein the Complainant sought a redundancy payment, the Respondent replied by email on or about 20 September 2022 to state that the Complainant had not been made redundant and that his position remained open, a letter was sent subsequently to reiterate this position.

The Respondent submits that the Respondent has always maintained that the Complainant was never dismissed but resigned of his own accord.

Mr O’Brien, Company Director, gave evidence on Oath at the hearing.

The witness stated that the company did work for clients in various areas and the team knew they were expected to travel.  He stated that when the Complainant came back from his holidays, he had a conversation with him and told him that as things were quiet but there would be work in Dublin, but there would also be work in Limerick when it arose. He denied saying it would be 12 months’ work in Dublin. He said the conversation he had had with the Complainant was “easy” and that he had accepted the situation. Mr O’Brien stated that he had asked the Complainant what he wanted to do and he, the Complainant, volunteered his resignation.  Another employee, Mr Mullane, resigned at about this time. Mr O’Brien stated that he brought both men to the office to make the matter “official,” in front of one another as they said they were resigning. Mr O’Brien said he would pay both of them two weeks’ notice. 

Mr O’Brien stated that his next contact with the Complainant took place after he came back from his own holidays and noticed some calls on his phone from the Complainant and he rang him back. In the conversation the Complainant said he was looking for his redundancy money; Mr O’Brien said to the Complainant that he had resigned but that he should come back to work.  The Complainant said he would not come back to work. Mr O’Brien followed up the call with a text message repeating his invitation to the Complainant to come back to work.  The next contact he got from the Complainant was through the Complainant’s solicitor.

In cross examination Mr O’Brien stated that he had not said it there was a 12-month contract in Dublin, in any case he knew from the Complainant’s domestic situation that a 12 month’s working in Dublin would not be feasible. He stated that he had not given the Complainant an ultimatum, rather the Complainant said he did not want to work out of Limerick and he resigned.

Mr David Mullane, a co-worker of the Complainant’s, gave evidence on Oath at the hearing.

Mr Mullane stated that most of the work he did for the Respondent was in Limerick, but at times he had worked in Roscommon and Cork. He stated that he had resigned from the job because Mr O’Brien had said that they would be doing more work outside of Limerick.

In cross examination, the witness stated that on his return from holidays on 22 August 2022, he was told by Mr O’Brien that things were quiet, but there was no mention of a 12-month contract in Dublin, but that there would be more work in Dublin. The witness stated that he had heard the Complainant say he was resigning.

When questioned, the witness stated that when Mr O’Brien had been speaking with him and the Complainant on 22 August 2022, he asked both men to confirm they were resigning, he was in Mr Mullane’s opinion, giving them an option to either stay on or resign. Mr Mullane stated that the Complainant shook hands and said, “I resign.”

In conclusion the Respondent submits that there was no redundancy, no dismissal, and the Complainant was offered his job back on several occasions; the Complainant unequivocally and unambiguously resigned from his employment.

The Act states

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—

The question to be answered in this instant case is; was the Complainant dismissed or did he resign? From the evidence adduced I find he was not dismissed but rather he resigned.  The evidence given by Mr O’Brien was clear and unambiguous.  It was corroborated by the evidence of Mr Mullane.

I note that the Complainant was offered his job back on several occasions. It was his decision to turn these offers down. 

I disallow the Complainant’s appeal.

Resignation, job offer.