Complainant

Respondent

Parties

Denis McCallig

Bord Iascaigh Mhara (BIM)

Representatives

Self-represented

Brian Joyce, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00064070-001

12/06/2024

The Complainant asserts that he is entitled to a redundancy payment.

The Respondent rejects the claim in its entirety. The Respondent submits that the Complainant’s role was never made redundant during his employment but that the Complainant’s employment with the Respondent ceased due to his retirement on 4 December 2023.

The Complainant submits that he joined BIM as an Ice Plant Operator in Killybegs, Co Donegal in November 1996. The Killybegs ice plant stopped producing ice in 2013. The Complainant was employed keeping an eye on things until 2016. He was a lone worker. The Complainant submits that the electricity supply and the landline in the Killybegs ice plant were cut off in 2016/2017. His lone worker alarm had been connected to the landline. The Complainant stayed in Killybegs keeping an eye on the building and the wet area.

The Complainant submits that his wages ceased in February 2023 when the Head of HR said that he could not be contacted. He further submits that he had a company phone which was silenced when the plant closed. The Complainant asserts that others could contact him readily in the Killybegs office.

The Complainant went through a process. He enquired about redundancy. The Complainant submits that he was told by the Head of HR that redundancy was not available in semi-state companies. However, the former Ice Plant Manager, informed him that when other ice plants closed, redundancy was available to fulltime employees.

The Complainant submits that he signed a retirement form in November 2023.

Background to the Respondent

BIM is a non-commercial semi-state body, with 129 employees, which was formally established by statute (Irish Sea Fisheries Act 1952). It is the Irish State agency responsible for developing the Irish seafood industry. It is an agency of the Department of Agriculture, Food, and the Marine (DAFM).

BIM’s Head Office is in Dún Laoghaire, Co. Dublin. In supporting the seafood sector, BIM’s staff are also strategically located in the coastal communities which they serve.

Background to the Complainant

The Complainant commenced employment with the Respondent on 11 November 1996, as an Ice Plant Operator in Killybegssupporting the production of ice for fishermen. When the production of ice ceased in late 2012, the Complainant remained in his role of Ice Plant Operator carrying out caretaking duties at the plant, and some relief work in other ice plants. The specific duties included:

·        Caretaker to the ice plant which still had significant machinery on site.

·        Oversight and engagement with service providers and contractors.

·        To provide support to the wider ice plant network through the provision of supports and equipment from Killybegs.

·        To provide relief cover when other operators were on leave.

·        To provide caretaking supports to the Killybegs offices.

·        Ad hoc support to the BIM’s CTU (Coastal Training Unit).

The Complainant was in receipt of a gross monthly salary of €2,540.48. The Complainant remained in this role of caretaker and in the Grade of Eng Tech II, up until his retirement on 4 December 2023.

Background to the claim

In late 2012, the Killybegs ice plant ceased operation. The Complainant was retained on site undertaking caretaking and relief duties, as per the above outline of duties, and was not made redundant at that time.

As a public sector employer, the Respondent is bound by the Public Service Agreements. At the time of Killybegs site ceased operations, the Croke Park Agreement (2010 – 2013) was in operation. Under that agreement compulsory redundancies did not apply. Instead, emphasis was placed on redeployment.

In March 2020, the Respondent understands that due to personal reasons, the Complainant relocated from Donegal to Dublin. Although based in Dublin, the Complainant regularly attended the Killybegs site.

In October 2021, the ice plant building where the Complainant was responsible for upkeep was closed. However, general upkeep of the overall site continued.

Between 2021 and 2022, the Respondent undertook a review of the ice plant network and considered the possibility of the deployment of roles and options for voluntary redundancy. However, no such option existed for Killybegs, nor does it exist currently.

Due to personnel changes in the Respondent’s Corporate Services (Facilities) and HR department post-Covid, there was an impact on engagement with employees and their working arrangements.

In November 2022, Ms Claire McDonald (Head of HR) sought to contact the Complainant as part of a wider discussion on the ice plant network. Ms McDonald attempted to contact the Complainant by phoning his listed contact numbers and contacting colleagues seeking updated contact details. In the absence of a response, Ms McDonald wrote to the Complainant in February 2023 seeking an urgent response. Due to the Complainant’s failure to respond, he was placed on unpaid leave in February 2023.

The Respondent received no contact from the Complainant until he attended the Respondent’s headquarters in Dublin in April 2023, where he met with Ms McDonald. At that time, the Complainant indicated that he was seeking access to the state pension and requested information as to why he was not eligible for the Respondent’s pension.

On 8 May 2023, the Respondent wrote to the Complainant clarifying his pension query and providing context as to why he was not a member of the company pension scheme. This was on the basis that in 2004 the Complainant opted not to join the pension scheme, and as such at no stage in his employment were any contributions made into the scheme as confirmed by letters on his personnel file dated 2004 and 2009.

On 30 May 2023, the Complainant met with Ms McDonald in person. There was some discussion around the Killybegs site, and his failure to respond to her attempts to contact him. Ms McDonald advised the Complainant that while payment of his wages had ceased, he was still an employee of the Respondent if he was available for work. Ms McDonald indicated that the Complainant could be relocated to an alternative site in the Dublin area based on his residential situation. It was agreed that the Complainant would provide confirmation of fitness from his own GP, prior to any such relocation.

As the Complainant failed to provide the necessary confirmation of fitness, an occupational health appointment was arranged for 1 June 2023 with his agreement. The Complainant attended the appointment, but did not proceed as he did not agree to sign the required consent forms. Therefore, a further meeting was scheduled between the Complainant and Ms McDonald.

On 8 August, a meeting took place between Ms McDonald and the Complainant with the Facilities Executive in attendance at the beginning of the meeting. A member of the HR team also attended in the capacity of note taker.

Following the Facilities Executive’s departure from the meeting, Ms McDonald sought an update on the Complainant’s fitness to work. The Complainant disclosed an injury he had to his wrist. He stated that he had been unable to sign the consent forms due to his injury. He further explained he would be attending his own doctor in Donegal, and he agreed he would be in touch within the next two weeks regarding his availability for work.

On 6 September 2023, Ms McDonald phoned the Complainant seeking an update. The Complainant referred again to the difficulty with his wrist and said that he would require more time.

On 19 October 2023, a meeting took place between Ms McDonald and the Complainant with a HR Assistant in attendance to take notes.

The Complainant was not a trade union member. However, due to the significance of the discussions, Ms McDonald thought it would be appropriate to put the Complainant in contact with the Shop Steward in the capacity of a supporting colleague. The Complainant was asked if he wanted the Shop Steward to attend in such a capacity. He was also given the opportunity to talk to the Shop Steward prior to the meeting.

The purpose of the meeting was to discuss the duties the Complainant had been undertaking in his role as caretaker, along with his current employment status. The Complainant advised that he had been available for work, but now had arthritis in his wrist.

During the meeting, the Complainant raised the issue of his age, and a discussion ensued about potential retirement. It was agreed that the Complainant would consider the matter and revert within a month.

On 3 November 2023, Ms McDonald wrote to the Complainant summarising the most recent meeting, and outlining events over recent months. The Complainant was reminded to revert to Ms McDonald within the month to inform her of his decision regarding retirement. The letter also stated that if it was not the Complainant’s intention to retire, a meeting could be organised to discuss alternative options.

On 4 December 2023 the Complainant wrote to the Respondent confirming his intention to retire. The Complainant was paid three months’ salary in lieu of notice and any outstanding annual leave.

Respondent’s position

The Complainant contends that he is entitled to a redundancy payment, following his resignation, by reason of retirement in December 2023. The Respondent refutes this claim.

The Respondent submits that any claim for redundancy following the cessation of the production of ice at the Killybegs ice plant in 2012, and associated amended duties is, in the first instance, statute barred and outside the maximum two years’ time frame to lodge a claim under the Redundancy Payments Act 1967, as amended (the “Act”). In any case, the claim is refuted as the Complainant remained in employment at the same grade conducting alternative duties on site.

The Respondent further submits that none of the Complainants colleagues was made redundant due to the closure of the Killybegs ice plant – they were either assigned caretaking duties or redeployed.

Section 7(1) of the Act provides that,

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off…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…”

It is the Respondent’s position that the Complainant was not dismissed by redundancy, or any other reason, but that the Complainant voluntary resigned from his employment by reason of retirement in December 2023.

As outlined by the Labour Court in Millett v. Shinkwin, EED044:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

It is also noted in the case of Tina Casey v Dunnes Stores [2003] 14 E.L.R. 313:

“For a dismissal to occur an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just. Termination is understood to mean ‘coming to an end’ and this import should be communicated to either party, directly or indirectly, or must be understood by virtue of the nature and extent of the circumstances of the case, or reasonably inferred therefrom.”

The above-mentioned passage emphasises the “communication” of the ending of the contract. In this case, such communication was forthcoming from the Complainant and followed several meetings between the Head of HR and the Complainant where the option of alternative work in the Dublin area was discussed. In addition to the foregoing, the Respondent submits that the Complainant’s retirement was “reasonably inferred” by the Respondent, as the Complainant confirmed his decision to retire in writing on 4 December 2023.

The Respondent relies on the similar case of Kieran O’Brien V Paul Boyd trading as John Dwyer Butchers ADJ-00043348, where the Adjudication Officer stated:

“The Complainant did resign from his position for reasons of his retirement and that he was not dismissed. Section 7 of the Redundancy Payments Act 1967 sets out that an employee shall be entitled to a Redundancy payment, if he is dismissed by his employer by reason of redundancy. I accept the Respondent submission that there was no dismissal in the ending of the Complainant's employment. I find that the Complainant retired (albeit reluctantly) from his position.”

The Complainant was offered the chance of a further meeting with the Respondent to discuss alternatives to retirement, which he did not avail of. As the Complainant was not dismissed by reason of redundancy, nor was he laid off, the Respondent submits that no entitlement to a redundancy payment exists.

Without prejudice to the above, in line with Public Service Agreements, should this situation have been deemed to be a redundancy, then the Respondent would have fulfilled its obligations in securing suitable alternatives through redeployment. As the Complainant was based in Dublin in 2023, preliminary discussions took place regarding a possible reassignment to the Respondent’s Howth site. However, as the Complainant chose to retire, that option was not fully explored.

Section 15 of the Act covers an employee’s 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.

In line with the above, the Respondent submits had a redundancy situation existed, the Complainant would have been retained on his same contract of employment, and under the same terms of conditions of employment, with the only difference being the location of employment. The Respondent submits that the proposed change in location was solely based on the Complainant’s relocation to Dublin. In any case all suitable locations would have been explored with the Complainant through a consultation process had that stage been reached. However, as the Complainant chose to retire, the need for such consultation did not arise.

Direct evidence of Claire McDonald, Head of HR

Ms McDonald confirmed that the Complainant’s role was never made redundant. She said that the Killybegs ice plant closed due to a reduction in the demand for ice and the duties of the ice plant operators changed – they took on caretaking duties on an ongoing basis.

Ms McDonald said that the Complainant’s pay ceased in February 2023 as she was unable to contact him. The Complainant had previously indicated that he did not want electronic communication. Ms McDonald said that although the Complainant’s pay ceased, his employment with the Respondent did not. The option of relief work was available to the Complainant. Because he had moved to Dublin, there might have been a role for him in the Howth ice plant.

Ms McDonald said that the Complainant came to the meet her in the Respondent’s Head Office on 30 May 2023. He told her that he was seeking the state pension but was experiencing difficulty. Ms McDonald explained to the Complainant that he was not eligible for a public sector pension because he had not paid contributions.

The Complainant indicated that he was available for work but that he had issues in relation to health and safety. He indicated that he wished to attend his own doctor in relation to these issues.

Ms McDonald said that she had approximately three longish meetings with the Complainant to discuss issues about health and safety and about retirement.

In a follow-up letter to the Complainant after a meeting on 19 October 2023, Ms McDonald wrote to him to say that she understood that he had secured the State contributory pension and that he had indicated that he was likely to retire. She asked the Complainant to revert in writing within a month to confirm his decision.

Ms McDonald confirmed that there was no question about the Complainant’s commitment or effort.

Ms McDonald confirmed that no redundancies took place as a result of the closure of the ice plants. She confirmed that there have been no redundancies in the Respondent organisation since 2012.

Conclusion

It is the Respondent’s position that the Complainant holds no entitlement to a redundancy payment as his employment ended due to his personal choice to resign by reason of retirement.

The right to a redundancy payment is set out in section 7 of the Redundancy Payments Act 1967 (the “Act”), as amended.

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.

In essence, in order to qualify for a redundancy payment, the employee must be dismissed by his employer. The question to be answered in this case, therefore, is whether the Complainant was dismissed by reason of redundancy, or did he resign from his employment with the Respondent.

Finding

The Complainant does not allege that he was dismissed by the Respondent. Rather he alleges that when the Killybegs ice plant was decommissioned, he became entitled to a redundancy payment.

As the Complainant does not allege that he was dismissed, the first criterion in section 7 of the Act, that a dismissal must have taken place, has not been discharged. I am satisfied that alternative employment was found for the Complainant when the Killybegs ice plant closed, and he remained as an employee of the Respondent organisation.

I note that the Respondent stopped paying the Complainant’s salary in February 2023. I accept the Respondent’s evidence that this was not a dismissal but arose as a result of its inability to contact the Complainant to ascertain his employment status. It would appear that some of this difficulty was attributable to the Complainant's refusal to accept electronic communication and the fact that he had relocated from Donegal to Dublin.

I find that the Complainant resigned from his employment with the Respondent in December 2023 when he provided written confirmation of his decision to retire.

Based on the totality of the evidence, both oral and written, put before me, I am satisfied that no dismissal took place. As no dismissal took place, no redundancy could be said to have occurred. I find, therefore, that this complaint is not well founded.

Section 39 of the Act requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

I find that the Complainant is not entitled to a statutory redundancy payment and, therefore, I disallow the Complainant’s appeal.

Resignation – no dismissal