Complainant

Respondent

Parties

John  Ryan

Swiftcastle Roscrea Ltd t/a Racket Hall Hotel

Representatives

  Self-Represented

 Hotel Managers

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-00049638-001

08/04/2022

The Complainant was employed as a Door Security Officer at the Hotel from March 2014 to a date that was strongly contested in or about 2020 to 2021.

The hours of work were variable but averaged about 8 hours per week. Gross Pay of €100 was paid.

The Complainant gave an oral testimony supported by some copy RP9 documents.

He had worked as Door Security for Functions/Dances at the Hotel from 2014 to January 2020. He was not employed since that date. This was largely due to the Covid emergency that effectively shut down Hospitality and especially in house entertainment.

He heard nothing from the Hotel from the remainder of 2020. In February 2021 he sent a RP9 Form to the Hotel but received no reply.

To the date of the referral of the complaint in April 2022 he had not heard from the Employer.

Respondent evidence was given by the Owner/Manager Ms F supported by Mr L.

The Complainant last physically worked /was paid at the Hotel in January 2020. He had remained technically on the payroll (but not paid) but was removed at his own request in October 2021. This was to facilitate a personal Tax situation. It appeared that appearing as an employee for Revenue purposes, even if unpaid, had been advantageous to his personal tax situation.

The claim for Redundancy in April 2022 when he was last employed in January 2020 was completely out of time. He had ceased working, at his own request in January 2020 and the fact that he had remained on the payroll was at best an administrative oversight. The Covid shutdown was not relevant as he was, effectively, not a live employee in March 2020

The Hotel had not, at the date of the Hearing, resumed Entertainment functions that would require dedicated Door Security.

3:1         Legal position / Redundancy Payments Act ,1967.

There are a number of key questions to be considered in this case.

These are primarily the Status of the Worker v/v Redundancy under the Redundancy payments Act,1967 and the Time Limits issue.

3:1:1       Status of the Worker /Qualification

The primary question is whether or not the Complainant was actually a Worker for the purposes of the Redundancy Payments Act,1967 and secondly was the Redundancy claim “in time”.

The Working relationship was very casual - on an “as required” / “available to come in” basis it appeared. There were two other Security officers Mr H and Mr F. It was all a very casual arrangement.

It was uncontested that the Complainant had voluntarily stopped working at the Hotel in January 2020. His last day of duty was stated to be in or about the 26th January 2020 but recollection was somewhat unclear. This was well before Covid in March 2020.

Door Work was still available at this time and Redundancy for the Complainant was at this time (January 2020), accordingly , not an issue.

The fact that he remained “on the Books” appeared to be a characteristic of the informal relationship.

Covid restrictions on hospitality/ public entertainments did not ease until mid-Summer of 2021. However, the Hotel did not resume Dances/Discos and Door Security was not required. At this point in time Redundancy could have been a legitimate issue.

Section 7 (2) of the Redundancy Payments Act,1967 , sets out 5 criteria to establish a Redundancy.

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,

From the Oral Testimony it was clear that none of these situations applied in January 2020.

The Respondent in Oral testimony argued that the Complainant left the hotel employment in January 2020.  Section 7(1) of the Act refers to “layoffs” or “short time working”.

From the Oral Testimony the issue of a “Lay off” did not arise. There was work but the Complainant wanted to move elsewhere. This was the key issue.

The unexpected Covid situation happened and he, the Complainant, was effectively now retrospectively seeking to “piggy back” a Redundancy claim against an employer that he had ceased to work for in January 2020. A key point was that he had never been formally terminated as an employee with the Revenue system.

The first RP9 was dated the 3rd of February 2022.  It was stated that the Complainant only resumed alternative PAYE employment with another employer on the 23rd of May 2022.

3:2       Adjudicator discussion

Based on the Oral testimony form the Parties the Complainant had ceased to do Door Security in January 2020. It was unclear how long this cessation was to last for as the matter appeared to rest with the Complainant. He remained on the employment books and could have requested, in his view, that he be given further work. It was, on the face, a very loose situation. There was no documentation save the Oral Testimony /Recollections of both parties.

None the less Redundancy was not an option at this time (January 2020) as the possible work continued with colleagues Mr H and Mr F.

Covid then happened and obviously no further work opportunities were available for the Complainant if he had chosen to make it know to the Respondent that he was available.

The key argument for the Complainant was to demonstrate that he was still had a proper contract of employment post January 2020.

In his favour is the argument that he remained on the Books until October 2021 which conveniently was just after the lifting of the Covid 19 restrictions on redundancy. On the other side was the Respondent view that the Complainant had simply moved on from the Hotel in January 2020 and as not interested in any further work. Not removing him from the Revenue account was just loose administration which was completely overtaken by Covid.

3:3          Adjudication Conclusion

On overall balance and having considered all the oral evidence the Adjudication view has to be that the Complainant left the employment in January 2020. No Redundancy was then available as work continued. No one expected Covid and the Complainant cannot now seek to reconstruct his January 2020 decision because the landscape completely changed with Covid two months later in March 2020.

The credible belief of the Respondent employer (under sworn Oath) in January 2020 was that the Complainant was not interested in any further work at the Hotel and had gone to other work opportunities. From an Adjudication viewpoint this was very persuasive.

The fact that the Complainant remained listed with Revenue for a weekly tax credit of what was stated to be a minimum credit of € 7.70 per week does not change this fact.

Accordingly, no redundancy is due to the Complainant.

Redundancy, Casual Employment.