Complainant

Respondent

Parties

Patrick  McCormack

Kilclooney Plant Hire

Representatives

  Mícheál O Dowd, O’Dowd Solicitors

James J.M. Meagher Thos. F. Griffin & Co. Solicitors

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-00047303-003

30/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047303-004

30/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00047303-001

17/11/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave their evidence under affirmation.  Another witness for the respondent gave his evidence under oath.  All witnesses gave their testimony and were cross examined by the opposing parties’ representative.

The complainant submitted that he worked for the respondent for several years before 2021. At the end of January 2021, the respondent indicated to him that as there was enough work, he would be working short time, a three-day week and he was asked which days suited him.  The complainant stated that he indicated that Monday, Tuesday & Wednesday would suit him.

The complainant submitted that he then took five days holidays that were owed to him and when he returned from his holiday, he started to work the three day week.  When the Wednesday came, he was asked to leave the van with his employer as he had some work to complete during the following days.  The complainant submitted that he told his employer to collect the van from his house.  He asked his employer how he was to get to work but his employer said that he had to make his own way to work. His employer collected the van.

The complainant submitted that as he had no way of getting to work, he took this to mean that he no longer had a job.

The complainant submitted that in October he sent an RP77 to the respondent seeking a redundancy payment.

The complainant submitted that he was effectively made redundant and was entitled to a redundancy payment.  The complainant also submitted that did not receive a payment in lieu of minimum notice.

The respondent submitted that its director indicated to the complainant that he had to go on short term employment, a three-day week. It was submitted that the complainant indicated that he would be prepared to do Monday, Tuesday and Wednesday.  The complainant took a week’s holidays and then commenced his first short week.

The respondent submitted that on the Wednesday, the director indicated to the complainant that the van (fitted out with all the tools) was needed to undertake jobs for the remainder of the week.  The complainant was asked to leave the van and that he would be given a lift home.  In response the complainant indicated that the van could be collected from his house.  The complainant enquired as to how he was supposed to get to work and was told that he needed to make his own way to work on Monday.

The respondent submitted that the van was collected and that when the complainant did not show up for work on the Monday he was called and indicated that he had secured a job elsewhere.

The respondent director indicated that he saw the complainant driving a competitors van a few days later and thought he had got a job with the competitor.

The respondent indicated that he received no further communication from the complainant until the papers for the WRC hearing.

The complainant confirmed in his testimony that he was never told that there was no work available and that he was being placed on short term work.  He indicated that he was in receipt of the Covid payment for six weeks before finding alternative employment.

The respondent witness stated that when he rang the complainant on the Monday morning, he indicated that he had secured alternative employment.  Then he saw the complainant driving a competitor’s van and provided details of location of the sighting, although the complainant denied this.

Testimony was given by the respondent’s accountant that the company was not seeking to cease trading or that it intended to make the complainant redundant, neither of these possibilities were ever discussed.  Discussions were had in relation to moving the complainant to a short time position.

Having considered the issues raised by both parties, the issue of redundancy was never raised by the parties.  All of the witnesses for both parties confirmed that the issue of short-term working was raised with the complainant being offered his choice of work days.

The complainant suggested that the removal of his exclusive use of the work van was tantamount to dismissal or redundancy, but this was disputed by the respondent.  Evidence was given that the van was not exclusively used by the complainant, although it was accepted that he predominantly used it.  It was agreed by the parties that the van was ‘kitted out’ for and stocked with tools for undertaking the respondent’s business and was noted that the van was still available to the complainant to use on the days that he was employed.

The was a dispute as to what transpired on the Monday morning when the complainant was supposed to return to work – the respondent director indicated that he contacted the complainant and was told that he had found alternative employment.  The complainant denied this and stated that he was never contacted.  There is no written evidence to indicate when the complainant started work or that the complainant sought a redundancy payment some eight months later.  On balance, I prefer the respondent’s version of events.

CA-00047303-003 & 004 Redundancy Payment

Having regard to the written and oral evidence presented to me in relation to these matters, I find that the complainant’s employment was not terminated by the employer.  There was work for the complainant, he confirmed as such, but his main issue seemed to revolve around exclusive access to the company vehicle.  Accordingly, I find that that no redundancy situation existed, and I disallow the complainant’s appeal.

CA-00047303-001 Minimum Notice

As regards the complainant’s entitlement to a payment in lieu of minimum notice, the complainant position was not terminated, and he has not established a right to any entitlement.   Accordingly, I find that the Act was not contravened.

CA-00047303-003 & 004 Redundancy Payment

Having regard to all the written and oral submissions in relation to these matters, my decision is that no redundancy situation existed and I disallow the complainant’s appeal.

  CA-00047303-001 Minimum Notice

Having regard to all the written and oral submissions in relation to this matter, my decision is that the complainant has not established a right to any entitlement and the Act was not contravened.

Redundancy Payments Act – no redundancy – appeal disallowed – Minimum notice – no entitlement established.