Complainant

Respondent

Parties

Ilona  Brede

Clane Inn Limited

Representatives

Self-Represented

Fiona Egan of Peninsula Group Limited

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-00049446-001

31/03/2022

The issues in contention concern a Statutory Redundancy claim by a Chef employed since 5th April 2006 against a Co Kildare Hotel/Bar. The end date of employment was stated as the 10th March 2022 although this this was disputed.

The Complainant was paid weekly at €12 for an average of 20 to 25 hours per week.

The Complainant submitted a written statement and gave a detailed oral testimony. She was supported/represented by her husband, who also gave oral testimony, during the Hearing.

She was laid off work due to Covid on the 21st  of March 2020. The Complainant kept in regular touch with the Employer regarding a return-to-work situation. Replies were brief and aften delayed. In July 2021 the Complainant contacted the Employer regarding Hospitality reopening in that month. Nothing transpired until a meeting in the Hotel on the 10th February 2022 where the Complainant was told that her old position in Hotel A in Naas  was not available but an equivalent position was offered in Hotel B at Clane. The offer of other work was unacceptable and the Complainant requested (15th February) the Employer to initiate Redundancy processes. Form RP9 was served on the Employer on the 10th March 2022. At the date of the filing of the claim (31st March 2022) no reply had been received and the Complainant now felt that she had a valid Redundancy claim. In cross examination it was accepted that an offer of work at Clane had been made in February 2022 and later in late March an offer to resume her old position at Naas.

However, in her oral testimony, she was strongly of the view that once the RP9 had been served on the 10th March 2022 and had not been officially replied to by the Respondent, in the stated time frame of 7 days, the Redundancy claim was virtually automatic. She was supported in this view by her Husband who gave supporting Testimony.

She availed of the opportunity to cross examine the Respondent witnesses during the Hearing.

The Respondent was represented by Ms Egan of Peninsula Business Services. A detailed written submission was provided. Oral testimony was given by Mr F, Owner Manager and Ms B, Administrator.

The Employment had begun in April 2006 on a full-time basis but changed to a 3-day week at the Complainant’s request in January 2019. In late 2019 the nature of the business changed, and the Hotel subcontracted to Dublin Corporation to provide Emergency Accommodation. In March 2020 the Complainant was laid off due to Covid. For business reasons the Hotel remained closed until the Spring of 2022. The Respondent met with the Complainant on the 15th February 2022 and offered identical work, albeit in Clane, as opposed to Naas. The rate of pay was increased to € 12.50 per hour to compensate for any changes. The physical distances from the Complainant’s home to both old and new work locations were identical. The Complainant declined the offer of work at Clane and sought Redundancy. The Respondent suggested that the Complainant visit the alternative premises at Clane to examine what was on offer. This was declined as the Complainant stated that she wanted to only work at Naas and the terms/conditions at Clane would impact negatively on her childcare arrangements.

On the 29th March 2022 the Respondent offered the Complainant her old job back, at Naas, from the 5th April 2022 on the same hours. No reply was ever received to this offer of resumed work at her original location. The WRC claim was lodged on the 31st March 2022.

In these circumstances of two offers of work there can be no valid basis for a Redundancy claim.

The owner manager Mr F gave an Oral Testimony and corroborated the above information. He had always sought to facilitate the Complainant with her domestic arrangements especially following a workplace accident in early 2019. It was his belief that the Complainant had always desired Redundancy since March 2022 and was unreasonable in her approaches to resuming work. He presented as a professional witness and appeared to be credible.

Ms Egan, the Respondent Representative, gave the view that the Complainant possibly misunderstood the purpose of the RP9 form – it was not, as the Complainant and her husband seemed to believe, an automatic entitlement to redundancy if not replied to in the time frame stated on the form.

It was absolutely clear that suitable work was available for the Complainant initially at Clane but later at her old place of work in Naas. In these circumstances no valid claim for Redundancy could be made.

3:1       Legal Position - Redundancy Payments Act,1967 and discussion of same

In this case Sections 12,13 and 15 of the Redundancy Payments Act,1967 apply.

Section 12 provides for a Redundancy Payment as a reason of “lay off or short time”. In this instance the Complainant maintained that she had been effectively laid off since March 2020 -the start of the Covid period.

Section 13 is also relevant –

Right of employer to give counter-notice.

13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

In this case the Complainant served a form RP9 on the 10th of March 2022 and maintained that she had not received any reply within the required 7-day period. This, she maintained was a tacit acceptance by the Respondent that she was entitled to redundancy. The Complainant then proceeded to lodge a form RP77 on the 22nd of March 2022 – effectively a formal claim for Redundancy.

However, Section 15 then becomes relevant

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 

(c) the renewal or re-engagement would take effect on or before the date of 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 

(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 and

(e) he has unreasonably refused the offer.

The Respondent Legal representative laid major emphasis of this Section.

The evidence presented and largely uncontested by the Complainant and her husband/lay representative was that a meeting had taken place at the Naas premises on the 10th February 2022. At this meeting the Complainant was offered what the Respondent maintained was comparable work at Clane, Co. Kildare. The Respondent offered a slightly higher salary and the distances involved were, it was maintained, virtually equidistant.

After consideration the Complainant declined this offered of “alternative work”. It was stated that this was due to possible Childcare issue and the potential liability for the Complainant to be rostered, arbitrarily, on shifts that did not suit her.

The Respondent suggested that the Complainant try the Clane position on an “exploratory basis”. The suggestion was declined by the Complainant.

Form RP77 was served by the Complainant on the 22nd of March.

However, on the 29th March 2022 the Respondent offered to re-engage the Complainant in her old position in Naas. Respondent E mail of the 29th March 2022 submitted in evidence.

In Oral Cross examination the Complainant and her Husband as Representative were not able to offer a satisfactory answer as to why they had declined this re-employment offer. They were clearly aware of the offer.

It was their belief that once the RP9 had been served and not replied to (and followed up with a form RP77) Redundancy was virtually guaranteed.

In the Oral evidence from both Parties, it was clear that all involved understood that work at the same or better terms was available for the Complainant. The Complainant and her Husband were unable to answer satisfactorily why they had rejected the first offer of Clane and later why they had not accepted the Naas position – the original employment.

On this basis and referencing Section 15 of the Redundancy Payments Act,1967 as quoted above - sub sections 1(a)

his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

and 2(c)

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

in particular, a case for Redundancy has not been satisfactorily made out.

Put simply, suitable work was available for the Complainant but was declined without any realistic explanation.

In this situation Redundancy cannot apply.

The Complaint fails.

Redundancy, Covid.