FULL RECOMMENDATION
RPA/23/18
ADJ-00033581 CA-00044295-001 | DETERMINATION NO. RPD2311 |
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014
PARTIES:LAST BUS LIMITED
(REPRESENTED MAIREAD MCKENNA SC INSTRUCTED BY DAWSON O'TOOLE SOLICITORS)
- AND -
MR RAUL BHIMA
(REPRESENTED MAURICE OSBORNE BL INSTRUCTED BY HANAHOE & HANAHOE SOLICITORS)
DIVISION:
| Chairman: | Ms Connolly | | Employer Member: | Mr Marie | | Worker Member: | Mr Bell |
SUBJECT:
1.Appeal Of Adjudication Officer Decision No ADJ-00033581 CA-00044295-001
BACKGROUND:
2.The worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 March 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 31 August 2023. The following is the Determination of the Court:
DETERMINATION:
This matter before the Court is an appeal by Mr Paul Bhima against a decision of an Adjudication Officer (ADJ-00033581, dated 10 February 2023) under the Redundancy Payments Act 1967 (‘the Act’) against his former employer, Last Bus Limited.
Mr Bhima was employed as a bus driver by Last Bus Limited and was based at Dublin Airport’sQuick Parkcar park, providing a shuttle bus service to and from Dublin Airport. He was laid off from his employment in October 2020 as a result of a significant drop in passenger numbers following the global Covid-19 pandemic. On 6 April 2021, the Respondent wrote to him with an offer of alternative work. The Complainant declined the offer of alternative employment.
On 24 May 2023 he lodged a complaint under the Act to the Workplace Relations Commission seeking a redundancy payment. The Adjudication Officer rejected Mr Bhima’s claim that he was entitled to a redundancy payment in circumstances where he had received an offer of employment that amounted to an offer of suitable alternative employment within the meaning of Section 15(2) of the Act. The Adjudication Officer further found that the Complainant was not dismissed from his employment and had failed to return to work after a period of lay-off.
The Notice of Appeal was received by the Court on 10 March 2023. A hearing of the Labour Court was held on 21 August 2023.
For ease of reference the parties are referred to as they were at first instance. Hence, Mr Raul Bhima is referred to as “the Complainant” and Last Bus Limited is referred to as “the Respondent”.
Submission of the Complainant
On 6 April 2021 the Respondent informed the Complainant that it was ceasing its working relationship with him, and that the Complainant was required to enter into a new contractual relationship with a separate legal entity,Citibus, on different terms and conditions to his original contract of employment.
The terms associated with the new role job were so significantly different to his original job that his original job was redundant. The changes included a different named employer, job title, place of work, hours of work, remuneration, and pension. There was a new employee handbook with changes to the sick pay policy. The Complainant was also required to wear a different uniform.
The Complainant is entitled to a redundancy payment in circumstances where the provisions of the new contract differed greatly to the terms of his original contact of employment, and his employment position under the original contract is redundant.
The Respondent’s attempts to reengage the Complainant under a new contract of employment and the Respondent’s refusal to offer the Complainant a redundancy payment amounts to an attempted dismissal of the Complainant from his position. The changes proposed were as follows:
Name of Employer-The Complainant’s contract of employment states that the name of his employer isLast Bus Limited, C/O Quick Park, Old Airport Road, Cloghran, County Dublin. On 6 April 6, 2021, he was informed that his new employer would beCitibus Limited.
Job Title- The Complainant’s job title in his original contract is “bus driver,” whereas in the proposed contract his job title changes to “coach driver” on a route operated by Dublin Coach.
Place of Work-The Complainant’s place of work was the Old Airport Road, Cloghran, County Dublin. His new contract proposed that he “will be required to work on any route according to the needs of the business or any depot required by management.”
Hours of Work- The Complainant was required to work 40 hours a week Monday to Sunday in accordance with a roster. No hours were given in the new contract, and there was no contractual entitlement to basic hours of work. The proposed working week was Friday to Thursday, with variable shifts initially and a fixed or rolling roster as positions became available.
Pay- The Complainant earned €18 per hour, whereas the new contract proposed a payment “per trip,” with no indication of the specific rate per trip. The new contract refers to a subsistence allowance which was not previously a component of the Complainant’s remuneration.
Employee Handbook-the Complainant was not provided with a copy of the new handbook.
Sick Pay- Under his new contract, the Complainant was required to provide a certificate from his doctor if he was absent for two consecutive days.
Uniform- the Complainant was required to wear a uniform and refund the cost if he left the job within six months of commencement.
The Complainant did not take up the offer of alternative employment. The Complainant’s decision to refuse the offer was not unreasonable in light of the significant changes to his terms and conditions of employment.
In circumstances where the significant changes proposed do not amount to suitable employment, the Respondent cannot rely on section 15(1) and 15(2) of the Act to assert that no right to a redundancy payment arises. The Respondent has not met all elements of the tests required to assert that no right to a redundancy payment arises.
The Complainant did not resign and is entitled to consider himself dismissed and to conclude that his job is redundant. His dismissal arose as his job was made redundant.
The Court was referred to the following caselaw in support of the position that an employee is entitled to a redundancy payment where the place of work has changed: Broderick v Dorothea Fashions Limited, RPD 11/1978, Earley v Floorstyle Contracts Limited, RPD 382/2003, Heavey v Casey Doors, RPD 1040/2013, Cinders Limited v Byrne, RPD 11/2018, L Connaughton and Sons Limited v Healy, RPD 5/2020, Sleczka v Skrzat, RPD 8/2020, Summeridge v Byrne, RPD 211 and Hartway Trading Limited and Joseph McGrath, RPD 2119.
Submission of the Respondent
The Complainant was not dismissed by reason of redundancy. He resigned his employment despite efforts on the part of his employer to provide him with an alternative and appropriate employment opportunity. As his employment was not terminated, and his role was not redundant, he does not qualify for a redundancy payment pursuant to Section 7 of the Act
On 6 April 2021 the Respondent wrote to the Complainant and his colleagues to advise thatQuick Parkas a business had ceased trading due to the pandemic and that it no longer had a requirement for bus drivers. The Respondent further advised that it wished for the Complainant to continue working forLast Bus Limitedon the Portlaoise to Dublin Airport routes for its sister companyCitibus. The Respondent provided comparative calculations of earnings to assist employees in the consultation process The Respondent also provided a sample employment contract fromCitibus. The Respondent made it clear that the Complainant would continue to be employed byLast Bus Limitedand that his length of service would be unaffected.
The Complainant’s assertion that he was required to enter into a new contractual relationship with a separate legal entityCitibusis erroneous and misleading. The letter of 6 April 2021 made it clear that the Respondent hoped for the Complainant“to continue working for Last Bus Limited operating services for Dublin Coach”.This was reaffirmed to the Complainant by email on 7April 2021.
The Complainant’s Solicitor, R. Bracken & Co., wrote to the Respondent on 5 May 2021 querying the proposed changes to the contract of employment. The Respondent replied on 19 May 2021 to confirm that it was making an offer of suitable alternative employment to the Complainant withLast Bus Ltdand not a separate legal entity as asserted by them. It further stated that it was entitled to amend terms and conditions of employment taking into account the requirements of the business, and following consultation, and that it was prepared to discuss the proposed terms with the said employees. The Complainants’ employment contract states as follows:“We reserve the right to amend your terms and conditions of employment, following consultation with you, taking into account the requirements of the business and legislation governing your employment”.
On 31 May 2021 the Respondent was advised that the Complainant had filed complaints with the WRC.The Complainant failed to engage or properly engage in a consultation process with the Respondent to discuss the proposed amendment to his terms and conditions of employment and instead made precipitous and premature complaints to the WRC.
Without prejudice to the above, the Complainant is not entitled to a redundancy payment in circumstances where he was laid off from October 2020 until his resignation on 24 May 2021, i.e. in excess of 26 weeks. As he did not have 104 weeks continuous employment he is not entitled to statutory redundancy. Furthermore, the Complainant failed to serve notice of his intention to claim a redundancy lump sum payment in a lay off situation as required by section 12 of the Act. Finally, the Labour Court has no jurisdiction to award the Complainant compensation for redundancy under the Act as the Emergency Measures in the Public Interest (Covid-19) Act 2020 prohibited the service of such notice by employees during the emergency period, which began on 13 March 2020 and was later extended to 30 September 2021 by operation of SI No. 284 of 2021.
Testimony of the Complainant – Mr Raul Bhima
The Complainant worked as a bus driver operating the shuttle bus at Dublin Airport, which he drove 20 – 30 times a day. He worked 12 hours shift over four days. He received a notice offering a new job. He understood that it was a zero-hours contract for a position as coach driver and that he would have to deal with cash. He lived in Lusk which was a 15-minute journey to the Airport, while the new job was based in Western Industrial Estate. He would be required to work on any route. He had never driven in the country before. The length trips would vary, and he would have to work five days a week. He understood that his job was gone, and that he had three days to reply to the new offer. His solicitor sent an email with queries, but no-one answered.
Under cross-examination, the Complainant said that he could not recall what date his solicitor contacted the Respondent, but he thought that it was before 5 May 2021. He accepted that he had no evidence of correspondence from his solicitor seeking a meeting. He could not recall if he saw the letter sent from his solicitor on his behalf on 5 May 2021 which threatened an injunction. The Complainant accepted that the letter of 6 April 2021 did not terminate his employment. He accepted that he emailed the Respondent the following day stating that the letter was good news.
The Complainant applied for a job with another bus company on 4 May 2021, and was working with that company and no longer in receipt of the Pandemic Unemployment Payment by 18 May 2021. He did not inform the Respondent.
Testimony of the former Operations manager – Mr Gerry Lynch
Mr Lynch was previously employed by the company as the Operations Manager. Pre-pandemic the
company employed 240 drivers. During the pandemic a series of restrictions were put in place. The National Transport Authority (NTA) approached the company about re-opening certain routes, which would be cashless. On 6 April 2021 he wrote to all employees to gauge levels of interest in returning to work. He attached documentation showing potential earnings. He knew that some drivers might be interested, and others would not. Some drivers had childcare duties or health issues.
The purpose of the letter was to consult and start a conversation. He received an email from the Complainant on 7 April who was favourably disposed to the offer. There were a few queries which were answered. He did not receive any subsequent communication seeking a meeting. He was shocked to receive a letter on 5 May threatening an injunction, as he had expected to start to a consultation.
Under cross-examination, Mr Lynch said that that the role offered to the Complainant was to drive buses and was not a new role. The same licence is required to drive buses or coaches. Training would be provided as recommended by their insurers at the time. The proposed route was Dublin to PortLaoise and was governed by the European Tachograph Regulations, which meant that a driver could not work over 60 hours a week. For this reason, the pay proposed was a consolidated rate per trip rather than an hourly rate. The employer named on the sample terms and conditions document was a mistake. The place of work stated the Airport or Western Industrial Estate. Employees were asked to respond within three days so that the company could gauge interest levels, organise training, and inform the NTA of a start date. There were no consequences if the Complainant did not take the new role. He would have stayed on the Pandemic Unemployment Payment.
The Law
The relevant sections of the Redundancy Payment Act (“the Act”) are as follows:
General right to redundancy payment.
7 -(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—
…
(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
…
Dismissal by employer.
9.—(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if— - (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or
(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or
(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.
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.
Deliberation and Findings
The Redundancy Payments Act 1967- 2022 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.
It is clear that a dismissal must occur in order to trigger an entitlement under the Act. Section 9(1) of the Act provides that a dismissal may arise where an employee’s contract is terminated directly by the employer, or upon the expiry of a fixed-term or specified-purpose contract, or in circumstances where an employee opts to terminate the contract of employment because they are entitled to do so by reason of the employer‘s conduct.
In this case, the Complainant relies on section 9(1)(a) of the Act and submits that his employment was terminated by the Respondent on 6 April 2021 when he was informed that there was no longer a requirement for employees to operate the shuttle service at Dublin Airport asQuickparkthe service provider had ceased trading, and where the Respondent proposed to fundamentally alter his terms and conditions of employment.
The Respondent disputes that the employment relationship was terminated by reason of redundancy. It submits that the Complainant resigned his employment prematurely despite efforts to provide him with an alternative and appropriate employment opportunity.
At the Court hearing, Mr Maurice Osborne BL on behalf of the Complainant confirmed that the Complainant’s employment was terminated on 6 April 2021, notwithstanding correspondence opened to the Court stating the termination date to be 24 May 2021. Ms Mairead McKenna, SC, on behalf of the Respondent submitted that this was the first time that it was asserted that a dismissal had occurred on 6 April 2021, and that it was denied that the Complainant employment was terminated on that or any other date.
Was the Complainants’ employment terminated by reason of redundancy on 6 April 2021?
The matter for the Court to decide in the first instance is whether or not the Complainant’s employment was terminated by reason of redundancy on 6 April 2021.
The Complainant was informed by letter on 6 April 2021 that the work for which he was employed, namely a bus driver at theQuickparkfacility at Dublin Airport, had ceased. Mr Osborne BL, on behalf of the Complainant, concedes that the letter as drafted does not constitute a written notification terminating the employment relationship on 6 April 2021. However, he submits that the Complainant was dismissed on that date by operation of the law in circumstances where a redundancy situation arose.
In support of his position, Mr Osbourne BL relies on Section 7(2)(a) of the Act which provides that an employee shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that the requirement for an employee to carry out work of a particular kind in the place where he was employed has ceased or diminished or is expected to cease or diminish. He further submits that the significant changes proposed to the Complainant’s contract of employment in the letter of 6 April 2021 do not amount to an offer of suitable employment such that the Respondent can rely on Section 15 of the Act to assert that no entitlement to a redundancy payment arises.
Given the significant import attached to the letter of 6 April 2021 it is appropriate to quote it in its entirety.
The letter states as follows:
- “Dear Raul Bhima,
As you are aware, Quickpark has ceased trading due to Covid-19 and therefore there is no longer any requirement for employees to operate at this facility. As a result, we are hoping for you to continue working for Last Bus Ltd operating services for Dublin Coach.
In order to facilitate this, we are proposing to amend your employment contract by moving your place of work to as required by the business needs of the Last Bus Ltd., to generally out of Dublin Airport or Western Industrial Estate, Naas Road, Dublin 12. We are also proposing to amend your terms and conditions of work to the same terms as the Dublin Coach drivers.
We enclose comparative calculations of earnings to assist. Please note the calculations are based on general single person and married persons standard tax credits, which may differ slightly to your own personal tax credit calculation.
We look forward to consulting with you further on the matter.
Best Regards
Gerry Lynch
Operations Manager”.
The Court is satisfied from a plain reading of the letter that it cannot be read as expressly notifying the Complainant that his employment relationship with his employer was terminated. The Court cannot agree with the assertion that the import of the letter of 6 April 2021 was that the Complainant’s employment relationship with his employer was terminated by operation of the law.
In the Court’s view, the letter simply informs the Complainant thatQuickpark -which was not the Complainant’s employer - had ceased trading, and that the Respondent wishes to retain the Complainant as a worker forLast Bus Ltdand wishes to consult with him about proposed changes to his terms and conditions of employment. The Court notes that the Complainant himself shared this view. His testimony was that he accepted that the letter of 6 April 2021 could not be construed as a termination letter, and that he considered himself to remain in employment after date.
It is clear to the Court that the Complainant’s status of employment on 6 April 2021 was that he remained on lay-off on that date, and that his employer was seeking to engage with him about returning to work with proposed changes to his employment contract, in circumstances whereQuickPark had ceased trading and there was no longer a requirement for bus drivers to provide a shuttle bus service between theQuickparkfacility and Dublin Airport.
Having regard to the above, the Court is satisfied that the Complainant’s employment was not terminated by the Respondent, by reason of redundancy or otherwise, on 6 April 2021.
Was the Complainant’s employment terminated by reason of redundancy after 6 April 2021 when he lodged a complaint under the Act to the Workplace Relations Commission seeking an entitlement to a redundancy payment?
The Complainant lodged a complaint under the Act to the Workplace Relations Commission on 24 May 2021. The Court’s jurisdiction under the Act is confined to breaches of the Act that occurred within the cognisable period for the complaint, which in this case is the 12-month period from 25 May 2020 to the 24 May 2021. For the sake of completeness, the Court will address whether or not an entitlement to a redundancy payment arose after 6 April 2021 and before a complaint was lodged with the Workplace Relations Commission.
An amount of correspondence during this period was opened to the Court for consideration.
On 7 April 2021 the Complainant emailed the Respondent in response to the letter of 6 April 2021 querying aspects of the proposed changes to his terms and conditions. He received a reply to that email which addressed the queries raised and requested that the Complainant let the Respondent know if he had any other queries.
On 5 May 2021 the Complainant’s (then) solicitor, R. Bracken & Co, wrote to the Respondent stating that the proposed changes to the Complainant’s contract of employment constituted a redundancy within the meaning of the Act, and that they were unacceptable to the Complainant who did not agree to work for a separate legal entity. The letter threatened legal proceedings if a reply was not forthcoming within seven days.
On 19 May 2021 the Respondent replied by letter to the solicitor stating that the Complainant and his colleagues were temporarily laid off due to the impact of the Covid-19 pandemic on the travel industry, and that it had reached out to these employees offering a chance to return to work. The Respondent further stated that the offer made was one of suitable alternative employment with the same employer and not a separate legal entity as asserted, and that they were willing to discuss the proposed terms with employees but had not received and questions or queries from them.
On 24 May 2021 the Complainant lodged a complaint to the Workplace Relations Commission seeking an entitlement to a redundancy payment under the Act. On 31 May 2021 the Complainant’s (then) solicitor, R. Bracken & Co, wrote to the Respondent to confirm that complaints had been filed with the Workplace Relations Commission.
The Complainant gave evidence to the Court that his Solicitor had written to the Respondent seeking a meeting on their behalf, but nobody had replied. Under cross-examination he said that he could not recall what date this contact was made but he thought that it was before 5 May 2021. He provided no evidence of this correspondence. The Complainant said that he applied for a job with another bus company on 4 May 2021. He was working with that company and no longer in receipt of the Pandemic Unemployment Payment by 18 May 2021. He did not inform the Respondent that he had secured alternative employment elsewhere.
Mr Gerry Lynch’s testimony was that the purpose of the letter of 6 April 2021 was to start a consultation with employees who wanted to return to work. He was shocked to receive the letter from the solicitor on 5 May 2021 which threatened an injunction. He replied to that letter but did not engage in further communications once the complaint was lodged to the Workplace Relations Commission. He said that no correspondence was received seeking a meeting on behalf of employees.
For the purposes of the Act an employee is taken to be dismissed if the contract of employment under which he is employed is terminated by the employer, or if the employee terminates the contract of employment in circumstances such that he is entitled so by reason of the employer‘s conduct.
On the evidence and testimony as presented, the Court is satisfied that the Complainant’s employment was not terminated by reason of redundancy by his employer before a complaint under the Act was lodged to the Workplace Relations Commission. The Complainant’s own evidence was that he applied for a job as a coach driver on 4 May 2021 and commenced that role on 18 May 2021.
In light of the above, the Court finds that the Complainant terminated his employment with the Respondent when he commenced working for his new employer on the 18 May 2021 and the reason for so doing so was to take up employment with his new employer at a time of his own choosing.
Notwithstanding the above, the Court is of the view that it was not reasonable for the Complainant to terminate his employment relationship when he did and then seek an entitlement to a redundancy payment in circumstances where he failed to meaningfully engage with the Respondent about the alternative employment opportunities proposed. It is clear that the Complainant failed to engage with the Respondent about the proposed changes to his contract of employment and instead prematurely submitted a complaint under the Act to the Workplace Relations Commission seeking a redundancy payment.
An entitlement to a redundancy payment cannot be triggered if there is no dismissal within the meaning of section 9 of the Act. As the Court has found that there was no dismissal, it finds that there is no entitlement to a redundancy payment.
In all of the circumstances of this case, the Court finds that the Complainant is not entitled a redundancy payment from the Respondent.
The decision of the Adjudication Officer is varied accordingly.
The Court so decides.
 | Signed on behalf of the Labour Court | | | | Katie Connolly | | CDK | ______________________ | | 9 October 2023 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to Coleen Dunne-Kennedy, Court Secretary. |
