Complainant

Respondent

Anonymised Parties

A Caretaker

A Property Management Company}

Representatives

Georgina Perryman of Citizens Information

Unrepresented at Hearing.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056345-001

27/04/2023

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

CA-00056345-002

27/04/2023

The Complainant was employed as a Caretaker by a Property Management Company. The employment began on the 20th March 2017 and ended on the 27th January 2023 on alleged Redundancy grounds. A linked Minimum Notice complaint was also made.

The rate of pay was stated to have been €2,700 gross per month for a 40-hour week.

The Complainant gave an Oral Testimony supported by a comprehensive written submission. The chief Spokesperson was Ms Perryman from the Citizens Advice Service

1:1        Redundancy CA-00056345-002

The Complainant listed his employment history – he had been engaged at Stewart Hall in the City Centre from March 2017 to June 2022 when the Respondent lost the contract. He was moved to Shaw Court in Portobello on a 4-hour day which was extended by a further 4 hours on a site in CityWest. On the 23rd December 2022 he was told Shaw Court was finishing and he remained in City West. On the 23rd  January 2023 he was informed that the CityWest job was finishing. The main Respondent Contact Point, Mr R, had informed him regarding Redundancy options in June 2022 but nothing further had happened.

On the 31st January 2023 the Complainant went to the Company Head Office in Clontarf and met Mr R. The meeting appeared amicable, and Mr R indicted that he would “Forward papers” in the next few days.

Nothing further happened. Later in the Month of February the Complainat again went to Clontarf to meet with Mr R. Mr R stated at this stage that he taken legal advice and any redundancy was the responsibility of the new Contractors at Stewart hall. They should have taken over the Complainant on a TUPE transfer.

The Complainant then sought the advice of Citizens Advice who initially contacted the Respondent, by e mail and correspondence. No reply was received. However, Mr R, communicated by phone with the CA, on the 1st June 2023. He stated that the Respondent had always treated the Complainant very fairly and redundancy was the responsibility of the new Stewart Hall contractor. Nothing further was received.

The Complainant stated case law in support of his case in particular Browne v Attitude Technology Ltd Adj 00046033.

In the Complainant’s view it was a clear case of redundancy under the Redundancy Payments Act, 1967

1:2        Minimum Notice & Terms of Employment Act, 1973 CA-00056345-001

The Complainat alleged that he had not received his proper Statutory Notice pay of four weeks as required by Section 12 of the Act. He had between 5 and 10 years’ service .

The Respondent did not attend the Hearing and his position could only be gleaned from correspondence to the Complainant. It was his written view that any Redundancy was the responsibility of the new Operator at Stewart Hall and that he (the former employer/Respondent)  had fully discharged his responsibilities to the Complainant.

In addition he had kept the Complainant on full pay - even when he was on a 20 hour week and had treated him with great consideration during a recent family bereavement.

None of this material could be challenged in open Hearing by the Complainant and as such had to be seen by the Adjudicator as, at best, Hearsay.

3:1         Redundancy Payments Act ,1967 - CA-00056345-002

3:1:1        The Applicable Law

Section 7, subsections (1) and (2)   of the Redundancy Payments Act ,1967 clearly cover the situation described. The Work that the Complainant was engaged to do had ceased, initially at Stewarts Hall and latterly at CityWest.  Although not taken under the TUPE Regulations (SI 131/2003) as regards Stewarts Hall the onus was on the “transferor” to inform the employee well in advance of the change in contractor and to facilitate the employee in establishing a communication process with the new operator – the “transferee”  - See Section 2 of the TUPE S.I. 131.

Standard commercial business practice would have been for the first Employer- the “transferor”  to arrange a process for the handover of the employees – in this case the Complainant to the “transferee” - the new operator with, if need be a commercial arrangement ,between both Companies put in place to cover any possible Redundancy.

This, it appeared, did not happen and the employee was offered alternative work at other Employer/Respondent sites eventually ending up in a CityWest position.

Accordingly, the Redundancy Payments Act,1967 has to apply to the Complainant and a Statutory redundancy award is due to him from the Respondent.

3:2          Minimum Notice & Terms of Employment Act, 1973 – CA-00056345-001

In the sworn evidence of the Complainant, he stated that he received four days’ notice of the ending of his employment. He was informed on the 23rd January that he was finishing on the 27th January 2023.

The Complainant had been in the service of the Respondent for a period of 5.86 years. Under Section 4(1) and particularly Section 4(2) (c) of the Minimum Notice & Terms of Employment Act, 1973 the prescribed Statutory Minimum Notice period for an employee with more than 5 years but less than 10 years is four weeks’ pay.

Accordingly, the Complainant is entitled under law to a Minimum Statutory notice of 4 weeks minus the four days – (20 - 4) = 16 days.

Supporting Pay Slips were produced by the Complainant, and the material could not be challenged by the Respondent due to his absence from the Proceedings.

On balance the version of events presented by the Complainant and his Representative has to be accepted.

Minimum Notice / Redundancy