Complainant

Respondent

Parties

Jimmy  Bell

Ballymun Regional Youth Resource

Representatives

Mr Darach Mac Namara BL, instructed by Mr. Mark Dillon, Dillon Geraghty & Co Solicitors.

 Board of Management members

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-00049948-001

27/04/2022

The Complainant is a Youth Worker and was employed by the Respondent from 19th May 2011 until 31st December 2021. His earnings were in excess of €600 per week.

A complaint was received by the Workplace Relations Commission on 27th April 2022 (CA – 00049948 – 001).

1.              The Redundancy Complaint against BRYR (Ballymun Regional Youth Resource).

1.1          The complainant commenced employment with BRYR on the 19th May 2011.

1.2          BRYR is a registered charity that provides services to young people in the Ballymun area of Dublin. Its stated mission is to “empower young people from the Ballymun region to reach their full potential, by putting in place a range of resources that will support them to make a happy, healthy and successful transition to adulthood, and promoting health, well-being and resilience at all stages of their development”. Amongst the services provided by BRYR include drop-in spaces for youths that provides a variety of activities and experiences, youth clubs, counselling, digital arts and IT workshops, and the staging of events including a Pride event, a Halloween event and an International Women’s Day event. The complainant was a youth worker employed on BRYR’s Outreach Team. This was an outreach programme that engaged with 10–24-year-olds on the streets rather than in a conventional youth work setting. The youth workers on the complainant’s team sought to engage with these young people wherever they were, whether that was on the streets, in the local parks or shops. The programme involved the youth workers making contact with young people and building relationships with them over a period of time with a view to providing insight into their needs and goals are and then supporting them in taking action to meet those needs and goals.

1.3          BRYR is primarily funded by the Department of Children Equality Disability Integration and Youth through the City of Dublin Youth Services, Dublin City Council and the Health Service Executive.

1.4          Prior to 2020, the complainant worked for BRYR without issue. However, during the course of 2020 and 2021, his superior, Angela Birch, had numerous interactions with members of BRYR’s management which confirmed its view that there was no longer a need for the complainant’s team. In particular, Ms Birch was told at meetings on the 17th May and the 1st June 2021 that the outreach team members were suffering from “burnout” and would be better placed somewhere else and that they no longer fitted into BRYR’s model and the vision that the organisation had for itself.

1.5          At a meeting in July 2021, attended by Ms Angela Birch, Outreach Team Leader, BRYR’s intention to have the complainant and his youth outreach co-workers (of which the Complainant was a team member) form a standalone team that was separate from BRYR was explored as can be seen from the minutes of the meeting dated 28th September 2021. During the course of that meeting, Geraldine Comerford, the complainant’s manager, stated to Ms Birch that BRYR was “in full favour of the team moving for the survival of outreach”. It was also stated at the meeting that it was hoped that the team would be able to maintain its closeness and relationship with BRYR after the move. The complainant was happy with this proposal because she was of the view that she and her team would be transferred together to a new employer so as to continue their work for that new employer in a new setting. She was also happy to move on the strict understanding that all of her employment rights and obligations with BRYR would be preserved post-transfer.

1.6          At follow up individual meetings with some of the staff namely, Angela Birch, Mark Davis, Jimmy Bell and Catherine Duncan on the 27th October 2021 they were asked whether they wanted to transfer their employment to a new entity to be established and funded by the HSE. They replied that they wanted to transfer in circumstances where BRYR had made it clear that the team no longer fitted into BRYR plans.

1.7          On the 26th November 2021, Ms Birch was asked into Ms Comerford’s office. She was handed a letter of dismissal addressed to the complainant. Ms Comerford told Ms Birch that the funding for the team was not forthcoming for 2022 and so this was a necessary step. Ms Birch was further informed by Ms Comerford that, since BRYR’s legal advice was that they were not obliged to transfer their employment to the new entity, and that, consequently, there was not going to be a transfer of undertakings. Instead, each of the four BRYR employees in question, including the complainant, would be dismissed with effect from the 31st December 2021 and could commence employment with the new entity thereafter if they so wished.

1.8          By way of letter dated the 26th November 2021, the complainant was dismissed. The reason given for the dismissal was that BRYR did not have the funding to keep the outreach programme that he had been working on. The complainant was informed by Ms Birch on the above date that Ms Comerford had informed her that he was being dismissed with effect from the 31st December 2021. Ms Comerford duly met the complainant on the 29th November 2021 and handed her the said dismissal letter.

1.9          On the 16th December 2021, Ms Birch was telephoned by Star’s Katy McAndrew who informed her that Star would be happy to take on all six members of the team even though BRYR had refused to consent to this move being treated as a transfer of staff pursuant to the 2003 Regulations.

1.10      The complainant commenced employment with Star in 2022. On the 2nd March 2022, the complainant’s SIPTU representative wrote to BRYR referring to the fact that BRYR had refused to entertain a TUPE transfer to Star on behalf of its member. On the 3rd March 2022, his trade union lodged a claim for a redundancy payment as against BRYR using the RP77 form. On the 11th March 2022, BRYR’s representative emailed the said union representative indicating that BRYR had now decided to agree to transferring certain staff members to Star.

1.11      Section 7(2) of the Redundancy Payments Act 1967 which provides as follows:

(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.

1.12                       The complainant’s entitlement to a redundancy lump sum arises in circumstances where he was dismissed. The reason given for the dismissal was a lack of funding for his position. It is submitted that the dismissal can be taken to have occurred by reason of redundancy and satisfies no fewer than three of the scenarios provided for in section 7(2)(a)-(c) above. This is because BRYR had clearly decided to bring the team’s function to an end. The fact that funding was no longer available does not somehow change this from a redundancy to something else.

1.13                       The complainant’s evidence will be that BRYR refused to consider a transfer of employment of any of the six employees to Star. That this is the case is also evidenced by the correspondence which passed between the complainants’ trade union representative and BRYR’s representative in or about March 2022. In that regard, it will be recalled that, in March 2022, some three months post-termination of his employment, BRYR sought to revoke its earlier refusal to permit the six employees transfer to the new entity. It is submitted that this change of position was because BRYR belatedly realised that it was now left exposed to their redundancy complaints under the 1967 Act. In other words, BRYR realised that it would be far less expensive for it to consent to the complainant’s transfer of employment to Star. Of course, this change of position came too late in the day. The complainant, like his co-workers, had already ended his employment with BRYR and commenced a new contract of employment with Star. The new contract of employment commenced inJanuary 2022. That contract with Star, specifically provides that “no previous employment counts as part of [his] period of continuous employment” It is submitted that this contractual provision is consistent with the complainant’s submission that there was no transfer of undertakings from BRYR to Star. BRYR refused to engage with Star regarding the possibility of treating this as a transfer of undertakings and that is why the complainant lost his previous years’ service when he commenced his new job. It was, and is, not possible to rewrite history in the circumstances. In that regard, it should be noted that Regulation 4(1) of the 2003 Regulations provides that “the transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”. Thus, BRYR’s attempt in March 2022 to seek to retrospectively apply the TUPE Regulations was in any event impermissible under the Regulations themselves as they were only concerned with the rights and obligations that existed in December 2021. Instead, the position is that the complainant’s employment with BRYR was terminated on grounds of redundancy in December 2021 and he immediately took up a new position with Star in January 2022. BRYR had the opportunity to do the right thing and seek to protect its employees’ by allowing TUPE to apply but chose not to do so. The price that BRYR must now pay is the complainant’s redundancy lump sum.

It is submitted that the complainant’s redundancy complaint should succeed having regard to the foregoing.

At the hearing of the complaint the Respondent’s representatives requested an adjournment of the hearing due to the late arrival of submissions from the complainant’s representative. This was the second request for an adjournment; an earlier request had been refused approximately one week prior to the hearing.

At the hearing the request for an adjournment was considered and refused by the Adjudication Officer (myself).

The Respondent did not present a submission to the hearing.

The Respondent did state that the reasons behind the termination of the Complainant’s employment was the withdrawal of funding from the HSE for 2022.

The Respondent sought legal advice and that advice was not to accept that this was a TUPE situation.

Request for an adjournment of the hearing.

At the hearing of the complaint the Respondent’s representatives requested an adjournment of the hearing due to the late arrival of submissions from the complainant’s representative. This was the second request for an adjournment; an earlier request had been refused approximately one week prior to the hearing.

At the hearing the request for an adjournment was considered and refused by the Adjudication Officer (myself) for the following reasons:

1.       The Respondents were aware that complaints had been submitted to the Workplace Relations Commission as far back as July 2022, some 15 months before the hearing.

2.       The letter informing the Respondents that the hearing would take place on 3rd November 2023 was sent on 27th September 2023, some 5 weeks prior to the actual hearing date.

3.       The hearing of these complaints had previously been scheduled for hearing on 23rd April 2023 and postponed by the Workplace Relations Commission.

At no point in 2021 did the Respondent consider that the 2003 Regulations (S.I. No. – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003) may apply to this situation.

On 26th November 2021 the Respondent wrote to the Complainant, this letter read as follows:

Dear Jimmy,

I am writing to inform you that the HSE have confirmed the reallocation of BRYR’s Easy Street Budget to another project in the Ballymun area, effective from 1st January 2022. As a result, no SLA Agreement will be extended to BRYR from the HSE to deliver the Easy Street programme after 31st December 2021.

In line with this and the terms and conditions of your employment we regret to inform you that we will be ending your contract of employment on the completion date, 31st December 2021. All supports will be put in place to assist you in gaining alternative employment for example, CV formulation, interview techniques, mock interviews, time off for interviews etc. Both myself and the PSC will make ourselves available to support you in whatever way we can.

If you have any questions in relation to any aspect of this letter please get back to me.

Yours sincerely,

Fiona Gallagher

Chairperson.

What can be adduced from this letter is the fact that the Respondent made the decision to dismiss the Complainant several weeks prior to his dismissal.

The representative for the Complainant has quoted Section 7(2) of the Redundancy Payments Act 1967 which provides as follows:

(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 representative for the Complainant goes onto state:

The complainant’s entitlement to a redundancy lump sum arises in circumstances where she was dismissed. The reason given for the dismissal was a lack of funding for her position. It is submitted that the dismissal can be taken to have occurred by reason of redundancy and satisfies no fewer than three of the scenarios provided for in section 7(2)(a)-(c) above. This is because BRYR had clearly decided to bring the team’s function to an end. The fact that funding was no longer available does not somehow change this from a redundancy to something else.

I am not in a position to disagree with the Complainant’s representative. This is clearly a redundancy situation.

The complaint as presented under the Redundancy Payments Act, 1967, is well founded and I now order the Respondent (Ballymun Regional Youth Resource) to pay the Complainant his statutory redundancy entitlement based on the following:

Start Date: 19th May 2011

End Date: 31st December 2021.

Weekly wage for redundancy calculation: €600

Payment to the Complainant should be made within 42 days from the date of this decision.

The complaint as presented under the Redundancy Payments Act, 1967, is well founded and I now order the Respondent (Ballymun Regional Youth Resource) to pay the Complainant his statutory redundancy entitlement based on the following:

Start Date: 19th May 2011

End Date: 31st December 2021.

Weekly wage for redundancy calculation: €600

Payment to the Complainant should be made within 42 days from the date of this decision.

Redundancy Payments Act 1967.