Complainant

Respondent

Parties

Tomasz  Jarosz

Edenlough Limited

Representatives

Joseph Ateb, Siptu Trade Union

Chelsea Gough, Friel Stafford

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-00054785-001

31/01/2023

The Complainant worked as a Chef for the Respondent from September 2006 until November 2022.  The Complainant submitted that he was dismissed by reason of redundancy. The Complainant earned €18 gross per hour which came to approximately €600 net per week. The Complainant submitted that he worked approximately 40-45 hours per week. The Complainant submitted that according to an online Redundancy Calculator, he believed that he was due a redundancy payment of €20,316. The Complainant submitted his Complaint Form to the WRC on 31 January 2023.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that he worked as a Chef and that his primary place of work was in “The Woodstock Café” / “Monck’s Green”, Phibsboro, Dublin 7. The Complainant submitted that on 14 September 2022, he received a letter from the Respondent, informing him that he would be made redundant and that he was on eight weeks’ notice. The Complainant submitted that approximately five weeks later, he was informed that the premises in Phibsboro was closing and that he would work for the remainder of his notice period in the Respondent’s other premises, “Olive’s Room” located in St. Anne’s Park, Raheny, Dublin 5. The Complainant submitted that Ms. Michelle Moloughney was the Owner, while Ms. Angela Ruttledge was his Manager.

The Complainant submitted that on 28 October 2022, the Respondent told him that his redundancy payment claim could not be processed until he left employment. The Complainant further submitted that on 12 November 2022, he sent a message to the Respondent enquiring about his redundancy payment. The Complainant submitted that on 17 November 2022 and 22 November 2022, the Respondent replied, indicating that he had not been made redundant as he had been offered an equivalent role on equivalent terms and that he had rejected the same and handed in his notice.

In his oral evidence, the Complainant submitted that after he received his notice on 14 September 2022, the Respondent never contacted him about any alternative position, or about anything at all. He submitted that his employer ignored him and never spoke to him as she did not have time to talk to him. The Complainant submitted that the email dated 22 November 2022 was sent to him out of the blue. The Complainant submitted that he never received any redundancy papers. The Complainant submitted that the Respondent continued to ignore him when he left. The Complainant submitted that he started a new position elsewhere at the end of November 2022.

The Complainant also submitted that as Friel Stafford did not attend the Hearing, the complaint has been conceded. By way of documentary evidence, the Complainant provided some correspondence with the Respondent. The Complainant also sought to rely on WRC Decisions ADJ-00034841, ADJ-00039541, ADJ-00038550 and Labour Court Recommendation RPD2120. 

The Respondent did not attend the Hearing.

In an email dated 1 August 2023, Friel Stafford came on record for the Respondent and confirmed that a Liquidator was appointed for the Respondent on 28 July 2023. In an email dated 15 August 2023, the Respondent indicated “Please note that the company will not be defending this claim.” Friel Stafford was put on notice of the second Hearing day by way of a letter from the WRC dated 5 October 2023. When Friel Stafford did not attend the second Hearing day, the WRC called Friel Stafford who confirmed that it was not attending the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and had

sufficient opportunity to attend.

The Law:

The Complainant seeks a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised (the “RPA”). In order to qualify, an employee must: (1) have at least 2 years’ continuous service;

(2) be in employment which is insurable under the Social Welfare Acts - this is a matter for the Department of Social Protection;

(3) be over the age of 16;

(4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and

(5) not have received a lump sum payment. Periods of lay-off are excluded from reckonable service.

Section 15 of the RPA 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,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the 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 differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

(2B) Where—

(a) an employee’s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer,

such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

(3) Where a person who is entitled to a weekly payment has unreasonably refused suitable employment offered or approved by the National Manpower Service, that person shall be disqualified from receiving any further weekly payments.”

Factual Matrix:

In his oral evidence, the Complainant submitted that after he received the Respondent’s letter dated 14 September 2022, he received no further communication. The Complainant was clear in his position that the Respondent completely ignored him. He also said that no alternative position was ever discussed with him. However, this position is not borne out by the documentary evidence that he provided or by the written submissions that he provided. To this end, I note the following:

In a letter dated 14 September 2022, the Respondent indicated:

“We hope to retain as many of our core staff as possible within our wider business, but we do need to notify you that your position at Monck’s Green will be made redundant. You are entitled to 8 weeks’ notice. Please accept today as the beginning of your notice period. We hope to offer to continue your employment in the same role and on the same terms, however, and we will be in touch further in the coming days to discuss this.”

In a message to the Respondent dated 28 October 2022, the Complainant indicated:

“Hi Michelle, I wasn’t upset yesterday just confused about it. I decided I will not be staying on as the job isn’t comparable with my expectations. I really appreciate all those years and time spent with you @ Woodstock and Moncks Green. My last day will be 11th of November. I would appreciate if you would start processing redundancy. Kind regards, Tom”

In a response that same date, the Respondent indicated:

“I can’t process til you leave, but think quick enough!”.

In a message to the Respondent dated 12 November 2022, the Complainant indicated:

“Hi Angela, could you please confirm the exact sum of redundancy payment? I need to process the welfare claim. Regards Tom”.

In a message to the Complainant dated 17 November 2022, the Respondent indicated:

“We offered you an equivalent role on equivalent terms (as discussed several times with Michelle – same position, salary, hours, practically identical menu, closer to your home) which you chose not to accept. We will therefore not be making a statutory redundancy to you. I refer you to s.15 of the Redundancy Payment Act 1967, as amended.”

In the Respondent’s email dated 22 November 2022, the Respondent refers to a redeployment request made by Siptu Trade Union on behalf of the Complainant. The Respondent indicated:

“Tom, you handed in your notice telling us that you wanted to work in a proper restaurant and while we absolutely do not agree that Olive’s Room is not a ‘proper restaurant’, you did resign despite the fact that we asked you to stay several times.”

Findings and Conclusions:

The RPA provides that an employee who is dismissed by his employer by reason of redundancy is entitled to receive a redundancy payment provided certain conditions are met. However, under section 15 of the RPA, 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 employee unreasonably refuses.

The Respondent’s letter dated 14 September 2022 cannot be read as expressly notifying the Complainant that his employment relationship was terminated. The letter clearly states “we hope to continue your employment in the same role and on the same terms.” Furthermore, the Respondent’s message to the Complainant dated 17 November 2022 states that the Complainant was offered an equivalent role on equivalent terms, which he rejected. The Complainant failed to provide any evidence by way of response or rebuttal – particularly as regards whether he reasonably refused the offer. Instead, according to his oral evidence, this correspondence never occurred at all – he said that the Respondent ignored him since its letter dated 14 September 2022.

Having considered all of the evidence put before me, I am not satisfied that a dismissal took place. I accept that while the Respondent did say that a redundancy would be forthcoming, the Complainant was never dismissed. It was the Complainant’s own decision to leave his employment and to seek work elsewhere. Accordingly, I disallow the Complainant’s appeal.

For the reasons outlined above, I disallow the Complainant’s appeal.

Redundancy Payments Act 1967.