Complainant

Respondent

Parties

Alina Kalkite

TLC Launderers Ltd t/a TLC  The Linen Company

Complainant

Respondent

Anonymised Parties

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Representatives

Richie MacRitchie, Welfare Appeals, Larkin Unemployed Centre

 No appearance

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-00053606-001

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053606-002

08/11/2022

The complainant commenced work with the respondent in 2004.  She was employed as a Laundry Operative.  Her weekly wage was €600 gross.  The complainant’s employment was terminated by reason of redundancy on 22 April 2022.  The complainant claims that she did not receive her statutory redundancy payment and did not receive the appropriate notice payment on termination of her employment.

The respondent did not attend the hearing and did not provide a submission.

CA-00053606-001

Complaint submitted pursuant to section 39 of the Redundancy Payments Act, 1967.

The complainant commenced work with the respondent company on 05 August 2004.  However, the contract of employment states the commencement date to be 01 September 2004.  The complainant worked as a Laundry Operative on shift work at the company premises in Dublin.

The Covid-19 pandemic had a significant impact on the business of the respondent.  The complainant was put on lay-off in April 2020 and received the pandemic unemployment payment.  By letter dated 20 May 2021 the complainant was notified that her role was at risk of redundancy. 

At the respondent’s request the complainant met with a director of the company and another staff member on 07 and 15 March 2022.  The complainant was offered work in another company preparing sandwiches in a warehouse facility.  She had never worked in the food industry.  The complainant refused the offer as it was unsuitable work, and she had no experience of working with food.

By letter dated 16 March 2022 the respondent confirmed that the complainant’s post was to be made redundant.  In the letter the respondent asserted that it had offered “suitable alternative employment” in a role that would involve lighter duties and increased pay.  The respondent stated, “We do consider it to be an augmentation of your existing terms and conditions of employment.”  The complainant was urged to trial the alternative offered and to revert to the respondent by 23 March 2022.  The respondent’s letter also stated, “As you have been offered suitable alternative employment, a redundancy payment is not an option.”

The complainant did not accept the offer of alternative employment which she considered to be unsuitable.  By letter dated 11 April 2022 the respondent requested a response to the offer of alternative employment with Wright Deli.  The respondent’s letter stated “We are now seeking confirmation from you that there is an intention to return to work.  We would appreciate replies by Friday, 22 April 2022.  If we do not receive replies by this date, we can only infer that you have no intention of accepting the role offered or returning to the workplace.”  The complainant did not accept the offer of alternative employment with another company as she had no experience of work in the food industry, and it was unsuitable work for her.

Legal Submission

The respondent, by letter dated 20 May 2021, gave notice to the complainant that her role was at risk of redundancy.  At a meeting on 07 March 2022 the respondent confirmed that the role was to be made redundant. That decision was confirmed by letter dated 16 March 2022.  The letter included the following statement: “unfortunately as explained TLC will cease trading on 28th March.  As you have been offered suitable alternative employment, a redundancy payment is not an option.” 

The complainant submits that the offer of alternative employment was not suitable.  She had experience in working as a Laundry Operative in a linen rental service providing services to hotels, restaurants, and airlines.  The offer of alternative employment was in a food production facility making sandwiches.  Section 15 of the Act provides that an employee may be disentitled to a redundancy payment if the employee has unreasonably refused the offer of alternative employment.  Section 15(2)(c) requires that the offer constitutes suitable employment in relations to the employee.

Section 16 of the Act provides that an offer of suitable alternative employment may be with the employer or with an associated company.  For the purposes of this section of the Act two companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company.  The complainant submits that the offer of alternative employment was with a company that was not the respondent and was not associated with the respondent company.

The complainant submits that her role with the respondent was declared redundant.  The offer of alternative employment was not suitable for her as it was in a different industry, that is in the food production industry.  The complainant had worked for almost eighteen years in the linen service company and had no experience in food production.  The alternative offered was with another company that was not associated with the respondent.  In those circumstances it was not unreasonable for the complainant to reject the offer of alternative employment and she is entitled to be paid a redundancy payment.

CA-00053606-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant asserts that she was not paid for her notice period.   She claims that she has a statutory entitlement to eight weeks’ notice based on her length of service with the respondent company.

Notice of the complaints was sent to the respondent at its registered address on 04 January 2023.  Notice of the date, place and time of the hearing was sent to the registered address by letter dated 04 May 2023.  There was no appearance by or on behalf of the respondent at the hearing.  The respondent did not make a submission.

CA-00053606-001

Complaint submitted pursuant to section 39 of the Redundancy Payments Act, 1967.

The complainant worked as a Laundry Operative in a linen service company for eighteen years. 

The complainant’s uncontested submission is that due to the Covid-19 pandemic the services provided by the respondent company were no longer in demand.  The complainant was laid off in April 2020 and received the pandemic unemployment payment.  In May 2021 the complainant was notified that her role was at risk of redundancy.  In March 2022 the complainant attended a meeting with the respondent and was offered alternative employment at another company.  The work offered was in a food production facility.  The complainant had no experience of working in food production.  The complainant refused the alternative employment offered as she deemed the work unsuitable for her, having no experience in food production.

The question to be decided is whether the complainant is entitled to a redundancy payment in circumstances where she refused to accept an offer of alternative employment with another employer, Wright Deli.

Legislation

Section 7 of the Act provides the following about the general entitlement to redundancy payments:

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.

Section 9 concerns the issue of dismissal by the employer, 9(3)(a) provides:

(3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—

(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,

(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,

(C) contains particulars of the service mentioned in clause (B), and

(D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.

(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.

Section 15 of the Act deals with circumstances where an employee may be disentitled to a 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 F35[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.

Section 16 of the Act deals with offers of re-engagement with an associated company.

16.— (1) Where the employer is a company, any reference in this Part to re-engagement by the employer shall be construed as a reference to re-engagement by that company or by an associated company, and any reference in this Part to an offer made by the employer shall be construed as including a reference to an offer made by an associated company.

(4) For the purposes of this section two companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and “associated company” shall be construed accordingly.

Based on the documents presented I am satisfied that the respondent ceased or intended to cease to carry on the business for the purpose of which the employee was employed.  The letter from the respondent to the complainant, dated 16 March 2022, stated that the complainant was being offered suitable alternative employment.  The new role was described as involving lighter duties and increased pay.  The letter of 11 April 2022 states that the alternative employment offered was with Wright Deli.  I am satisfied that the alternative employment offered was with another employer and the work was of an entirely different nature to the work the complainant had carried out for the respondent over the previous eighteen years. 

Section 9(3)(a) of the Act provides for an employee to be re-engaged by another employer immediately on the termination of their employment, where that re-engagement takes place with the agreement of the employee, the previous employer, and the new employer.  The complainant did not agree to be re-engaged by a new employer.  Therefore, the respondent could not rely on the provisions set out in section 9(3) of the Act.

Section 15(2) provides that an employee shall not be entitled to a redundancy payment if they are made an offer in writing to renew their contract of employment or to be re-engaged under a new contract where the provisions of the new contract differ wholly or in part from the corresponding provisions of their contract in force immediately before the termination of their contract and the offer constitutes an offer of suitable employment in relation to the employee.  The alternative employment was in the food industry and in a different location.  The complainant had no experience of working in the food industry.  Based on the submission presented and not contested by the respondent, I am satisfied that the alternative employment was not an offer of suitable employment in relation to the employee.

The complainant submitted that the offer of alternative employment was with a company that was not the respondent and was not an associated company.  The complainant presented documents from the Companies Registration Office that show no companies associated with the respondent.

Having carefully considered the uncontested submission presented I find that the complainant was dismissed from her employment by reason of redundancy, that the offer of alternative employment was not an offer of suitable employment in relation to her, that she did not agree to accept an offer of employment with another employer and that she did not unreasonably refuse the offer of alternative employment.  I am satisfied that the complainant having been dismissed by the respondent by reason of redundancy is entitled to a redundancy payment pursuant to section 7 of the Redundancy Payments Act 1967.

The complainant is entitled to a redundancy payment based on the following criteria:

Date employment commenced:  01 September 2004

Date employment ended:             22 April 2022

Lay off period:                                01 April 2020 to 22 April 2022

Gross weekly pay:                          €600

CA-00053606-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant claims that she was notified of redundancy on 16 March 2022 and her employment ended on 22 April 2022.  She claims that she has a statutory right to eight weeks’ notice.  The complainant did not receive any payment for her notice period.

Legislation

This claim is submitted under the Payment of Wages Act, 1991.  The statutory entitlement to notice of termination of employment is provided for under section 4 of the Minimum Notice and Terms of Employment Act, 1973. 

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 5 of the Payment of Wages Act, 1991 provides as follows:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) … (5)

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The complainant commenced employment with the respondent on 01 September 2004.  She was dismissed by reason of redundancy on 22 April 2022.  Based on those dates, which were uncontested, I am satisfied that the complainant was entitled to a statutory notice period of eight weeks.  The complainant was notified of her redundancy just five weeks before her contract was terminated.

The complainant stated that she did not receive any payment for the relevant notice period.  Section 5 of the Payment of Wages Act provides that an employer shall not make a deduction from the wages of an employee unless required or authorised by statute, terms of the employment contract or the employee has given prior consent in writing to a deduction.  Section 5(6)(b) provides that where none of the wages that are properly payable to an employee are paid then the non-payment shall be treated as a deduction made by the employer. 

Based on the uncontested submission of the complainant I am satisfied that she was not paid during her notice period, that such non-payment is a deduction in contravention of section 5 of the Payment of Wages Act, 1991.  I find the complainant is entitled to payment of wages for eight weeks that were properly payable to her.

CA-00053606-001

Complaint submitted pursuant to section 39 of the Redundancy Payments Act, 1967.

Having carefully considered the uncontested submission presented I find that the complainant was dismissed from her employment by reason of redundancy, that the offer of alternative employment was not an offer of suitable employment in relation to her, that she did not agree to accept an offer of employment with another employer and that she did not unreasonably refuse the offer of alternative employment. 

I allow the complainant’s appeal and I decide that she is entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Acts 1967 -2014 based on the following criteria:

Date employment commenced:  01 September 2004

Date employment ended:             22 April 2022

Lay off period:                                01 April 2020 to 22 April 2022

Gross weekly pay:                          €600

This decision is made subject to the complainant being an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts during the relevant period.

CA-00053606-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

Based on the uncontested submission of the complainant I am satisfied that she was not paid during her notice period, that such non-payment is a deduction in contravention of section 5 of the Payment of Wages Act, 1991.  I find the complaint is well founded.  I direct the respondent to pay to the complainant compensation in the amount of €4,800 gross.

Redundancy

Non-payment of redundancy payment

Pay for notice period