RPD241

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038089 (CA-00048732-003)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 August 2023 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 28 November 2023. The following is the Decision of the Court:

DECISION:

This is an appeal by Aoife Core (“the Complainant”) against an Adjudication Officer’s Decision (Number - ADJ-00038089, dated 10 July 2023), given under the Redundancy Payments Act 1967 (“the Act”) in a claim against her former employer Bidvest Noonan (“the Respondent”). 

The Adjudication Officer held that he did not have jurisdiction to hear the complaint. 

A Labour Court hearing was held on 28 November 2023. The Court heard witness testimony from the Complainant. No witness testimony was proffered by the Respondent.

Preliminary Matter – Time Limits

The parties addressed a preliminary matter relating to the time limits for lodging the within complaint.

The Act provides that an employee has 12 months from the date of termination of employment to submit a complaint under the Act, which can be extended for a further 12 months in certain circumstances.

Respondent’s case

The Respondent asserts that the Complainant’s employment ceased on 5 January 2021. The Workplace Relations Commission (WRC) complaint form, although dated 29 December 2021, was date-stamped as received on 17 February 2022.The termination date recorded by the Complainant on the WRC form is 5 January 2021.Therefore, the complaint is manifestly out of time having regard to the time limits set out at s.24 of the Act, and the Court has no jurisdiction to hear the complaint.

Complainant’s case

The Complainant disputes that her employment terminated on 5 January 2021. She submits that the Respondent recorded her employment as “ceased” with Revenue on that date which is why it was recorded as the termination date on the WRC form. A notification to Revenue of cessation of employment does not constitute a termination of employment, but rather is an indication of cessation of regular pay. Her position is that she received no notification, either verbal or written in January 2021 to indicate that her employment was terminated, or at any time thereafter.

The Respondent wrote to her on several occasions during 2021 and as late as 9 November 2021, confirming that she was employed.  A claim for redundancy was made to the Respondent via a RP77 form on 15 November 2021. The Respondent confirmed receipt of that notice on 24 November 2021.  The Complainant asserts that the Respondent terminated her employment sometime on or after 14 December 2021. The complaint under the Act was submitted within six months of the contravention of the Act and so was submitted within time.

Relevant Law – Time Limits

Section 24 of the Act sets out the time-limits on claims for a redundancy payment as follows: -

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director Generalunder section 39.

Court Deliberations - Preliminary Matter of Time Limits

The Respondent’s position is that the Complainant’s employment was terminated on 5 January 2021, when she declined to work a new roster due to her personal circumstances. It accepts that it has no evidence to support the contention that the Complainant’s employment ended on 5 January 2021. It accepts that after that date it entered into various correspondence with the Complainant, which was opened to the Court and is summarised below.

In the period from 4 June 2021 to 15 November 2021 the Respondent sent the Complainant several WhatsApp messages with details of available job roles.

On 23 September 2021, 29 September 2021, and 9 November 2021, the Respondent sent the Complainant three letters which were requested by her for social welfare purposes. The Respondent asserts that those three letters was sent to her in error. Each of the letters was titled ‘Letter of Employment’ and contained the statement “We wish to confirm that Aoife Core is currently employed by Bidvest Noonan’.

The letter dated 29 September 2021 also stated: - “Aoife’s last rostered day of work was 05/01/2021 due to Covid 19…position (sic) offered back but employee could not return due to personal circumstances and is now on unpaid leave”.

The letter dated 9 November 2021 further stated:- “Aoife was working in Volkswagen from 16.45-19.45 Monday to Friday. She went on maternity leave, Than (sic) covid hit and she was put on Lay off. In September 2021 client asked if we can send operative from 14.00 – 18.00…Aoife is unable to do the times from 14.00- 18.00 her working times doesn’t match as before so she has not been placed back on site (sic)”.

On 23 November 2021 the Respondent wrote to the Complainant setting out details of three positions which the Complainant had declined and offering her a position at a different client site in Liffey Valley (Monday to Friday, from 6-8pm).

On 10 December 2021 the Respondent replied to the Complainant in response to the RP77 form she had submitted. The subject line of that letter was titled “Re: Offer of Redeployment” and thepenultimate paragraph stated as follows: - “Should you wish to refuse the alternative employment offer without reasonable explanation, it will be taken as that you are resigning from your position. In such circumstances it is required for you to confirm your refusal to accept the alternative offer of employment in writing by no later than 5pm Tuesday 14th of December 2021“.

A further letter from the Respondent dated 15 December 2021 noted that her former position was no longer available and urged her to reconsider the alternative position offered to her.

It is evident to the Court from the content of the above correspondence that, notwithstanding the Respondent’s assertions that the employment relationship ceased on 5 January 2021, the Respondent continued to regard the Complainant as an employee in continuous employment up until at least 15 December 2021, which is the date of the final letter between the parties that was opened to the Court. 

Decision – Preliminary Matter

The Court finds that the Complainant was an employee of the Respondent up until at least 15 December 2021. As the complaint under the Act was received by the Workplace Relations Commission on 17 February 2022 the Court finds that the complaint was lodged within the 52-week time-limit set down at s.24 of the Act. Accordingly, the Court finds that it has jurisdiction to hear the complaint. 

Background – Substantive matter

The Complainant worked as a Cleaning Operative with the Respondent at a client site in Liffey Valley since the commencement of her employment on 17 June 2013. She worked 15 hours per week, Monday to Friday, and was paid €11.80 per hour.

In September 2020 the Complainant returned to work from maternity leave. In October 2020 she was laid off for a period due to Covid restrictions and returned to work in December 2020.  Thereafter, up until December 2021 the Complainant was on unpaid leave.

The Complainant’s working hours were 4.45 to 7.45pm.  In December 2020 following a request from the Liffey Valley client the Respondent changed the Complainant’s hours to an earlier time of 3 to 6pm. The changed roster hours did not suit the Complainant and she refused to work them.

Position of the Complainant – Substantive matter

The Complainant submits that the Respondent contravened the Act when it failed to pay her a redundancy payment after she submitted a claim using an RP77 form on 15 November 2021. 

The Complainant submits that she worked the same hours at the same client site for the duration of her employment.  The Complainant disputed an assertion by the Respondent that she worked a different roster on her return from maternity leave in September 2020. Her sworn evidence was that at all times she worked her normal hours from 4.45 to 7.45pm. She stopped working in late December 2020 for the Christmas holidays and did not return to work thereafter as she was laid off. 

The Complainant acknowledges efforts made by the Respondent to offer her alternative roles but submits that she was unable to accept any of the offers made due to her family circumstances. The client site at Liffey Valley was a 10-minute walk from her home. At that time, she had four children, the youngest of which was an infant. Her partner was in employment from 6am to 4.30pm and did not return to the house until after that time. She had to drop and collect two children from school. She does not drive.

The Complainant submits that her refusal of offers of alternative employment were not unreasonable, and she has an entitlement to a redundancy payment. The Complainant referred the Court to the case of Executors of Everest v Cox [1980] ICR 415 which found: “The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared or ought reasonably to have appeared, to her at the time the decision had to be made.”  The Complainant further relies on Hudson v George Harrison Ltd EAT 0571/02 and submits that her personal circumstances must be considered.

Position of the Respondent– Substantive matter

The Respondent submits that the Complainant’s refusal to accept offers of alternative work because of personal circumstances are not grounds for an entitlement to a statutory redundancy payment.

The Complainant was placed on lay-off during the Covid-19 national lockdown. On 8 December 2020, the client site re-opened, and the Complainant returned to work a new roster from 3-6pm.  The Complainant worked the new roster until 5 January 2021, when she advised that the hours did not suit her due to personal circumstance.  She was placed back on lay-off.

The Respondent made genuine efforts to provide the Complainant with as many reasonable and suitable alternative positions as it could. The Complainant failed to engage with the options provided.

Having submitted an RP77 form, the Complainant was offered and declined two suitable alternative roles. 

The Complainant’s refusal to accept the offers of alternative work because of personal circumstances are not grounds for an entitlement to a statutory redundancy payment. The Respondent referred the Court to the cases of Nicholas Archer v Thomas Brennan & Sons Limited RP1701, Employee v Employer 229/2008 and Cambridge and District Co-operative Society Ltd v Ruse (1993) IRLR 156.

The Law

The relevant sections of the Redundancy Payment Act (“the Act”) are as follows:

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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,]

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

It is accepted that the Complainant worked as a contract cleaner for the duration of her employment at the same client site in Liffey Valley. In September 2020 the Complainant returned to work from maternity leave. In October 2020 was laid off for a period due to Covid restrictions. She returned to work in December 2020. 

There was some dispute between the parties about when the Complainant was notified that the client at the Liffey Valley site requested a change to the start and finish times to a new roster from 3.00 – 6.00pm. No change was proposed to the weekly total of 15 hours.

It was also disputed if the Complainant ever worked that revised roster. In the absence of any evidence from the Respondent to support their assertion that she ever worked the new roster, the Court accepts that the Complainant worked the same hours (4.45 to 7.45pm) for the duration of her employment at the client site.

It is accepted that the Complainant did not return to work after 5 January 2021 and that she was laid off from her employment thereafter during a period of national lockdown due to Covid-19.

The Court notes that the Respondent sent the Complainant several WhatsApp messages with details of available job roles in the period from 4 June 2021 to 15 November 2021.

On 27 July 2021 the Respondent contacted the Complainant via WhatApp to request that she return to work at the client site on 6 September 2021. The hours proposed were Monday to Friday 2.00 to 5.30pm. but the client was willing to be flexible as long as the work was completed by 5.30pm. The Complainant declined to return to work. 

On 30 September 2021 the Respondent contacted the Complainant and again asked her to return to work at the Liffey Valley client site. The Complainant advised that she was unable to work the hours proposed due to her personal circumstances.

Subsequently, the Respondent sent further WhatsApp messages regarding other employment positions which the Complainant also declined.

In November 2021 the Complainant sent an RP77 form to the Respondent. She submits that the Respondent breached the Act as she is entitled to a redundancy payment in circumstances where her refusal of offers of alternative employment were not unreasonable due to her personal circumstances.

The Respondent’s position is that no entitlement to a statutory redundancy payment arises in the circumstances of this case, as the Complainant declined to work a new roster for personal reasons and having received the RP77 form it made genuine efforts to provide her with alternative work.

Any entitlement to a redundancy payment is predicated on the fact that there is a redundancy within the meaning of section 7(2) of the Act. The first matter for the Court to determine therefore is whether a redundancy situation arose as per section 7 of the Act.

It was not clear to the Court under which of the provisions under section 7(2) of the Act the Complainant relies on to ground her claim for a redundancy payment.

In St Ledger v Frontline Distribution Limited (UD 56/94) the Tribunal considered the concept of redundancy as follows:

“Redundancy has two characteristics which are of importance in this case. It is impersonal and it involves change.

Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: "one or more reasons not related to the individual workers concerned".

Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in number. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words "other work". More work or less work of the same kind does not mean "other work" and is only quantitative change. In any event the quantitative change in this case is in the wrong direction. A downward change in the volume of work might imply redundancy under another definition, (b) but an upward change would not.”

In the within appeal, it is accepted that the work undertaken by the Complainant was not extinguished at the client site in Liffey Valley.  There was no change to the nature of the work carried out. The location did not change. The proposed start and finish times changed. The client was willing to be flexible, with certain restrictions.

On the facts as presented, the Court is satisfied that the nature of the work did not change, nor did the manner in which it was done. The Complainant declined to work a new roster as an earlier start time as it did not suit her due to personal circumstances. In the view of the Court while a change to the worker’s start and finish times as outlined in this case may constitute a breach of contract it does not comprise sufficient change to constitute a redundancy for the purpose of the Act. 

Having regard to the facts as presented, the Court finds that no redundancy arose within the meaning of the definition set out at 7(2) of the Act.

Decision

The Court determines that the complaint is not well founded, and that the Complainant is not entitled to a statutory redundancy payment:

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
CDK	______________________
01 February 2024	Deputy Chairman