Complainant

Respondent

Parties

Angelika  Zyra

Eatstro Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Lorcan McNeela Managing Director

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-00065646-001

27/08/2024

The Complainant referred a complaint to the Workplace Relations Commission on the 27th August 2024 wherein she claimed to be entitled to a statutory redundancy payment following a period of layoff. The Respondent denied the claim asserting that having placed the Complainant on temporary lay-off it complied with its obligations under the Redundancy Payments Act 1967 (as amended) and that the Complainant voluntarily resigned from her employment with the Respondent.

The Complainant commenced employment with the Respondent on the 21st June 2021. She                                                                                worked full time as a Food Preparation Assistant and she earned €13.50 per hour.

From the end of December 2023 the Complainant was on certified sick leave. In June 2024 she contacted the Respondent with a view to returning to work on the 28th June 2024. She was informed that due to a downturn in the business the Respondent did not have hours available and that she was being place on temporary layoff. The Complainant decided that she would start looking for a new job.

On the 2nd August 2024 the Complainant sent a Form RP9 to the Respondent. The Respondent responded on the 8th August 2024 offering the Complainant part-time work. The Complainant replied stating that she could not accept part-time work and that she wanted her redundancy payment. She received further correspondence from the Respondent on the 9th August 2024 offering her a full-time position on her same terms and conditions starting on the 30th August 2024.

The Complainant stated that her focus was on getting a new job and that she informed the Respondent of this and that she would not be accepting the offer of full-time employment commencing on the 30th August 2024. 

On the 14th August 2024 the Complainant emailed the Managing Director and informed him that she did not accept the counter-offer and she attached a Form RP77.

On the 16th August 2024 she secured a new job and she sent a letter of resignation to the Respondent’s Managing Directors.

In response to questions from the Adjudication Officer the Complainant stated that she was advised by the WRC that she did not have to accept the Respondent’s offer of alternative employment and that she was entitled to seek a redundancy payment as she was laid off for more than four weeks. When asked to identify the individual or individuals within the WRC who furnished advice to her she stated that she did not have their names and that she may not have expressed herself correctly to them and she might have misunderstood what was said to her. She stated that the decision not to accept the counter-offer and instead look for a new job and resign from her employment with the Respondent was own. She did not want to go back to work with the Respondent as she wanted to improve her life and change to a better job.

On the 21st June 2024 the Complainant was put on notice that she was being placed on temporary lay-off from the 24th June 2024 by reason of lack of available hours. The Complained served a Form RP9 dated the 2nd August 2024 on the Respondent claiming a redundancy lump sum payment. The Respondent served a counternotice on the 9th August 2024. The Complainant replied by email stating that she was not accepting the offer and that she was looking for a new job. The Managing Director wrote again to the Complainant on the 14th August 2024 as the Respondent wanted to ensure that the Complainant was fully informed of the implications of refusing the offer. The  Complainant responded on the 14th August 2024 by serving a Form RP77 on the Respondent. On the 16th August 2023 the Managing Director received an email from the Complainant attaching a letter of resignation addressed to  himself and his co-Managing Director. 

The Respondent submitted that it acted in accordance with the relevant provisions of the Redundancy Payments Act and that the offer extended to the Complainant was reasonable and aligned with her previous role as a full-time Food Preparation Assistant.

In response to questions from the Adjudication Officer the Managing Director confirmed that his letter to the Complainant on the 14th August 2024 made it clear that that he was available to discuss the offer and any specific reasons or concerns the Complainant may have had that led to her refusal. The Complainant made it clear to him she did not want to return to work for the Respondent and, having found a new job, she resigned from her employment with the Respondent.

In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced at the hearings summarised above.

In the present case, the parties are agreed that the Complainant was placed on lay-off as defined by the Redundancy Payments Act 1967 (as amended) (hereinafter referred to as “the 1967 Act). It is further agreed that the Complainant served notice of potential redundancy and that the Respondent replied to the same within the statutory timeframe. Finally, it is agreed that the Complainant did not accept the offer of alternative employment issued by the Respondent because she was seeking new employment and that having secured new employment she resigned.

In this regard, Section 11 of the 1967 Act provides that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Thereafter, Section 12(1) of the 1967 Act provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Finally, in relation to counter notice, Section 13(1) of the 1967 Act provides that,

“…an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.”

In the present case, it is common case that the Complainant received notice in writing of her lay-off from the Respondent on the 21st June 2024 and that she served a Form RP9 on the Respondent on the 2nd August 2024. In such circumstances it is apparent that the requirement of Sections 11 and 12, cited above, have been fulfilled.

Regarding Section 13(1) of the 1967 Act it is again common case that the Complainant was informed on the 9th August 2024 of an alternative role which aligned with her previous role as a full-time Food Preparation Assistant, within the timeframe for counternotice provided for in Section 13. In response to the Respondent’s counternotice the Complainant replied by email on the 9th August 2024 stating “Good Afternoon. I hope you are well. I am looking for new job now. Thank you for your offer. I attach you information about redundancy payment.” The Complainant’s position in this regard is that, having served an RP9, she was not obliged to accept the alternative role set out in the counternotice and return to work with the Respondent and that she was entitled to look for a new job. Having secured a new job on the 16th August 2024 the Complainant sent a letter of resignation to the Respondent’s Managing Directors.

I find that the Respondent issued counternotice to the Complainant’s application for redundancy in accordance with Section 13 of the 1967 Act and that thereafter the Complainant voluntarily resigned from her employment with the Respondent. In such circumstances, the Complainant is not entitled to a statutory redundancy payment and her appeal is unsuccessful.

For the reasons set out above, I decide that the Complainant was not made redundant from her employment with the Respondent. In such circumstances, the Complainant is not entitled to a statutory redundancy payment and her appeal is unsuccessful.