Complainant

Respondent

Parties

Breda  Corcoran

Greenstock Flowers Ltd.

Representatives

  Ms Natasha Hand, Richard Grogan Solicitors.

Mr Paul McGlynn, HRS Consultants

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-00048353-001

26/01/2022

The Complainant was employed as a Florist with the Respondent on 7th July 2014.  Employment ended on 6th December 2021.

This complaint was received by the Workplace Relations Commission on 26th January 2022.

The Complainant’s claim is for redundancy under the Redundancy Payments Act 1967.  The Complainant commenced employment on 7th July 2014 and her employment ended on 6th December 2021.  The Complainant served notice of her intention to claim redundancy on her former employer on 6th December 2021.  The Complainant was in a position to claim redundancy as she was on layoff and served the RP9 form on her employer.

The respondent employer responded to the claim via email on 14th December 2021 acknowledging receipt of the Complainant’s letter dated 6th December 2021.  Nowhere in the response does it set out that they are countering the Complainant’s claim for redundancy or set out where they are giving hours of work etc.  A further email was then sent on 18th December 2021 in which the Respondent does set out that they are pleased to offer other hours which can be agreed by management.  However, they did not respond in the requisite time. 

Preliminary Issue.

In this case the Respondent is challenging the fact that the Complainant was redundant at all.  The Complainant clearly wanted to be made redundant, however the position was not redundant.  The Respondent was having difficulty getting a response from the Complainant and any responses did not indicate that she was positively disposed to a return to work.  The Respondent was busy, in fact she hoped that the Complainant would not only return to work but would do some additional hours by agreement as the Respondent was busy and did not have enough people do to the level of work available.

The Complainant was employed as a Florist with the Respondent from 7th July 2014.  On 6th December 2021 the Complainant issued an RP9 to her employer.  The Respondent responded offering the Complainant her job back on the same terms and conditions as before and offering her extra hours / work which may be agreed with management.  This shows that this is not a redundancy situation.  In fact, were the employer to accede to the request the Complainant in those circumstances would be entitled to claim unfair dismissal because of the fact it is not a genuine redundancy as the position was clearly not redundant, and the Respondent was in fact looking to recruit additional staff.

Despite their best efforts the Respondent failed to get any response to communications.  As a result, they sent a registered letter to the Complainant’s home on 13th January 2022 giving her up to 20th to make contact or they would consider that she had resigned.  There was no response to this letter and the next thing the Respondent heard was that there was a claim for redundancy against the Company.

Background

The Complainant sent a text in March 2020 stating that she would not be at work since she was a close contact with a family member who was in isolation with Covid 19.  She followed that up with a text looking to exhaust whatever annual leave she had left.  On 12th June 2020 in response to an email from the Complainant the Respondent sent a communication to her on the situation, they were effectively trying to establish the level of safety they would be working in and what level of business they would be able to carry out.

On 27th August 2020 things were more positive and the Respondent sent an email to organise a virtual call with the Complainant.

On 28th August 2020 the Complainant responded that the following day was not suitable and she would be available the following Tuesday at 1pm.  The Respondent responded that 5pm Tuesday would suit but received no response to this.  It seemed that the Complainant was not very anxious to get back to work.  On 1st September 2020 further emails were sent and the Complainant responded that she was available for 15 minutes now and if not now, it would be next week before she would be available.  The Respondent had trouble in contacting the Complainant on several occasions from this point on.

There was no further communication from the Complainant and efforts to phone her failed.  The next thing the Respondent was issued with RP9 redundancy form.  The Respondent then sent an email on 18th December with a clear offer of her job under the very same terms and conditions and even offering additional hours if she would be happy to agree to this.  There was no response to this.  This is a reasonable response, and you would imagine a positive response for the Complainant if she wanted her job back.  After not receiving a response to this positive communication and anxious to get the Complainant back to work at a busy time; the Respondent then sent another communication, again asking the Complainant to make contact by 20th January and if she failed to make contact, they would consider that she had resigned without notice and they would process her final payment and terminate the employment.  You would expect that an employee would respond to this being on notice that if they do not hear from her the employment would be terminated.  An employee cannot just go absent without leave at any time and if they do there would be a two-step process where the employee is contacted looking for a cert or some contact, if there is no response to that then another communication would be sent saying that if there was no contact in a reasonable period it would be considered that the employee left without notice.  No employer could reasonably be expected to hold a position open for any employee that fails to engage, is not on annual leave, is not certified sick and has no authorised leave.  To do otherwise would make a nonsense of the management of annual leave or other leave and would be fundamentally unfair not just on the employer but on other staff who have to pick up for the employee that is letting everyone down.  The Complainant did not make contact and the next communication was the communication from the WRC that she was claiming redundancy.  This by no means is a redundancy and no employer should have to pay redundancy where a position is not redundant.  An employee cannot simply make themselves available for work and claim they are redundant.

CONCLUSION

This is a simple case of a company in business at a very difficult and challenging time, while the Government provided protections for employers under section 29 of the Emergency Measures in the Public Interest Act 2020, these protections expired on 30th September 2020.  Luckily the Respondent was able to re-employ their staff, but the Complainant could not be contacted.  To claim redundancy, the position would need to be redundant.  At any time, never mind this difficult time for business it would be preposterous to allow a situation where an employee who did not want to continue in work, rather than resign could just ignore communications from their employer and claim that they were redundant.  Redundancy is there for employees who no longer have work and it is important that this is available for genuine cases.  Redundancy should not be used as a trap for an employer.  If the employer acceded to the request, they could then also be subject to an unfair dismissal.  These types of claims and repugnant activity is a disincentive for small business to open in Ireland or attract foreign direct investment as it

This is clearly not a redundancy situation – the Complainant’s job was still in existence.

The Respondent made attempts to contact the Complainant which were unsuccessful. From my reading of the submissions, it appears that the Respondent encountered some difficulty in trying to contact the Respondent.

The complaint is not well founded and fails.

The complaint is not well founded and fails.