Complainant

Respondent

Parties

Barry  Ryan

Dhl Supply Chain (Ireland) Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Vivian Cullen SIPTU-Trade Union

Sarah Dowling IBEC

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-00056354-001

27/04/2023

The Complainant claims entitlement to a statutory lump sum payment arising from the termination of his employment with the Respondent.  These matters came before the Workplace Relations Commission via a complaint submitted on 27th of April 2023 under section 39 of the Redundancy Payments Act, 1967.

The Complainant seeks a redundancy payment in circumstances where he submits that his employment with the respondent ended on 31st of August 2022.  

The Respondent rejects the claim in its entirety. The Respondent submits that the Complainant’s role was never made redundant but that his employment ended on 31st of August 2022 when he transferred over to Company C via TUPE transfer having declined an offer to remain in employment with the respondent in an alternative role.

It should be noted from the outset that although there are references to a TUPE and another employer Company C, the within claim is a redundancy claim lodged against the named respondent only and there was no claim under TUPE legislation.    

It should also be noted that there is no claim for Unfair Dismissal arising from the complainant’s employment with the respondent which ended on 31st of August 2022.     The cognisable 6-month period for submission of any such claim ended in February 2023.

The complainant submits that he started work with Company A in June 1997 and later as a result of TUPE on the 1st of September 2009, he began working for THE RESPONDENT  employed as an Operations support supervisor to manage an on-site contract.

The complainant submits that in February 2022 he was informed by site management that THE RESPONDENT would not be renewing the contract with Company A. THE RESPONDENT had declined to tender for the contract and had given notice to Company A to exit the building by the 31st of August 2022.

The complainant submits that no other information was given to him and over  the next five months he and other staff requested more information, but none was given ,only to be told it was with THE RESPONDENT legal department.   The complainant submits that over these five months staff had no feedback from site management and an effort was made to avoid staff . The complainant submits that he felt as if he was insignificant. 

The complainant submits that he emailed the HR Manager and requested information, only to be emailed back stating this was not in their remit.     The complainant submits that he was left to deal with the fallout from this with the team.     The complainant submits that he was stressed , upset and felt like his 25 years work meant nothing to THE RESPONDENT.

The complainant submits that on the 26th of July 2022 staff were given letters informing them of the termination of the Company A contract with no other information.  The letters were handed to staff with no response from the site manager. The complainant submits that there was a lack of engagement from management at all times and that management only spoke to staff at all because of a legal requirement to inform them of the pending changes. The complainant submits that there was an attitude from management that Company C would need the staff and that they were going to move over to Company C ,this was said a number of times by HR who was under the impression that staff would TUPE over.

The complainant submits that on Friday 29th of July 2022 staff were briefed by THE RESPONDENT management confirming that the contract the complainant was working on (Company A the Chemist was not being renewed and because of this staff would TUPE across to Company C. During this meeting the complainant submits that he asked at the time if other options were available and was informed, that they would TUPE across to Company C or a suitable alternative employment with the respondent and the respondent proceeded to give a list of roles.  The complainant submits that these roles were out of date and not relevant to current roles.  

 The complainant submits that questions being asked by the staff were answered with ,”you will TUPE over” or an alternative role ,the complainant submits that the three managers were not forthcoming with any relevant information ,such as contract names of Company C or any of THE RESPONDENT roles.    The complainant submits that he had previously TUPE d over to THE RESPONDENT in 2009 and had no issues at that time.

The complainant submits that in his opinion meeting was held ,just to ensure the respondent informed staff within the legal time frame.    The complainant submits that staff were informed If they had any questions to contact the site manager or  HR and they would answer.   The complainant submits that he made numerous attempts to get information both from the site manager ,HR and a site GM only for his emails to be ignored .  The complainant submits that he approached management a number of time and was informed ,that they could not give any information ,other than it was with their legal team.

The complainant submits that he attended his One-to-One meeting, but  no note taker was present no record of the conversation was recorded .     The complainant submits that he requested a note taker but was informed that it was not necessary as a summary of the meeting would be sent.    The complainant submits that he pointed out that he was not happy, and it was a breach of procedure.   The complainant submits that at the meeting HR informed him that there was an FLM role available on another site (Donabate) and no other information was given ,such as Hours or the actual contract.

 The complainant submits that that he informed the respondent that it was not a suitable role and as the respondent had informed him at a previous meeting that he would TUPE to Company C.

 The complainant submits that the respondent advised him that they had reached out to Company C and If he wanted to attend Company C on the 1st of September they would meet him.      The complainant submits that he  informed them that they had given him a number of letters stating that he was to TUPE over to Company C and so that is what he was going to do.

The complainant submits that during his one to one he was informed that  if he did not accept the roles being offered ,that by 17.00 on the 31st of August he would no longer be employed by THE RESPONDENT.   The complainant submits that when he informed them, that it was not suitable ,he was told he could take a case against THE RESPONDENT, and it would take 18 months.

 The complainant submits that he felt this to be a threatening statement , and an either take it or leave it comment.    The complainant submits that following this his swipe card and LAPTOP were requested from him.

The respondent submits that the Complainants employment began on 01st September 2009 with THE RESPONDENT following a TUPE transfer from Company A, The Chemist Ltd. He was employed on a full-time basis.

The respondent submits that the Complainant was notified of the termination of the Company A contract, by letter which was distributed by site management on the 26th of July 2022. The letter outlined how Company C was taking over the Company A contract upon its termination with THE RESPONDENT.    The respondent submits that on the 5th of July 2022, a letter was sent by the respondent to Company C addressing its success in securing the Company A contract and highlighting that upon contract termination with THE RESPONDENT on the 31st of August 2022, 17 direct employees of THE RESPONDENT would transfer to Company C, under the Regulations, as was the case in a previous TUPE involving Company A and THE RESPONDENT

The respondent submits that the complainant was advised that he would be updated on the ongoing progress of the situation. On the 29th of July 2022, employees affected by the Company A contract termination were briefed by THE RESPONDENT site management and told that they would go through a TUPE process to Company C.

The respondent submits that on the 8th of August 2022, a letter issued to SIPTU, informing them that 121 consultations with THE RESPONDENT employees would be carried out on 11th and 12th of August 2022, where details of internal vacancies would be given, while also giving the details on pension providers.

The respondent submits that Company C refused to recognise the TUPE process which resulted in a conciliation hearing concerning the disputed TUPE process, which took place on the 23rd of August 2022 in the WRC between THE RESPONDENT and Company C.  

The respondent submits that following on from the conciliation hearing, consultation meetings with employees began. The Complainant’s consultation meeting occurred on the 24th of August 2022 where THE RESPONDENT explained that they would be transferring the employees to Company C with effect from 1st September 2022 pursuant to the Transfer Regulations 2003.

The respondent submits that it  recognised that Company C was resisting the application of the Transfer Regulations and that THE RESPONDENT recognised that it was a matter for the employees to assert their rights to transfer to Company C.  THE RESPONDENT submits that it also recognised that this uncertainty could be upsetting and troubling for employees and submits that with this in mind THE RESPONDENT proposed a role to the Complainant, if he decided not to exercise his right to transfer.

 The respondent submits that the Complainant disregarded the role and stated that he wanted to transfer, as he wanted a role “like for like” in Company C.   The respondent submits that the Complainant asked what other options were available to him, to which it was made clear that either he transfers to Company C or accept other alternative vacant roles suitable to him.  The Complainant confirmed that he wanted to transfer to Company C under the Regulations and requested a meeting be set up for him and Company C.

The respondent submits that 0n 26th of August 2022, a letter was sent to Company C . The letter reaffirmed THE RESPONDENT’s position on the TUPE process and clarified that THE RESPONDENT would be transferring employees to Company C.     It was noted in the letter that 9 employees would now transfer.    8 employees effective as of 1st of September 2022 as 1 employee was on Long Term Absence.

The respondent submits that the Complainant met again with the respondent HR on the 29th of August 2022 where he requested an update and stated that he never received details of alternative roles offered as they weren’t given in writing, however, they were verbally given to him at the first consultation meeting, held on the 24th of August 2022.   

 The respondent submits that it  confirmed receipt of the Complainants email of Sunday 28th August 2022 requesting a meeting for an update and details on his annual leave balance and pension provider and  confirmed that the respondent  had emailed Company C and stated that their position had not changed regarding the TUPE Transfer.

 The respondent submits that the complainant then stated that he felt THE RESPONDENT had treated him unfairly and again, went on to suggest that THE RESPONDENT had not given him an offer of alternative employment.   The respondent undertook to provide details of roles to him along with requested information of pension and annual leave.

 On the 31st of August 2022, another meeting took place with the Complainant.  The respondent submits that  the Complainant confirmed he had the right to assert that he would transfer under the transfer regulations. It was confirmed to him that THE RESPONDENT was agreeable to provide him with an alternative role should he choose to remain in THE RESPONDENT.

The respondent submits that the Complainant explained that in his opinion the role that was offered to him was not a suitable alternative. The Respondent would like to note that the role that was offered was at the same level that the Complainant had been working previously with no change to his terms and conditions.   The respondent submits that the Complainant requested details of the Company C location. It was confirmed to him and stated that Company C would meet with them in a guest capacity.  

 The respondent submits that the Complainant requested details in writing of his termination of employment with THE RESPONDENT.    It was confirmed with him that in the scenario that the Complainant wished to transfer to Company C, there was no termination of his employment as such, as his employment would, in THE RESPONDENT’s view, continue uninterrupted with Company C.   The respondent submits that another meeting took place on the 31st of August 2022, where the Complainant was offered another role as FLM in ABP on the sky contract and the Complainant declined. The respondent submits that the Complainant stated he wasn’t interested as he wanted to transfer to Company C.

The respondent submits that on the 31st of August 2022, an email was sent to the Complainant outlining that further to consultation meetings, the Complainant was provided with opportunities that were available to him within THE RESPONDENT company. The Complainant chose not to utilise one of the vacant roles so details on the TUPE were shared.

 It was stated that it is THE RESPONDENT's position that under the European Communities (Protection of Employee' Rights on Transfer of Undertakings) Regulations, 2003 (the "transfer regulations") apply in this instance. However, Company C does not share the same view. Company C does not agree that the "Transfer Regulations" apply and had informed THE RESPONDENT that they were refusing to take on any employees of THE RESPONDENT who had been working on the Company A account.. 

 It was noted that Company C were notified that the employees who wished to assert their right to transfer under the “Transfer Regulations” 2003, would be reporting to work at Company C premises on the 1st of September 2022.   It was noted that Company C informed THE RESPONDENT that on the 1st of September 2022, they would facilitate a meeting with the employees to discuss their position as opposed to accepting THE RESPONDENT employees.

 The respondent submits that it assured the complainant that they were still available to meet with him to discuss the matter, given that the consultation period would end upon the termination of the contract with Company A. (31st of August 2022).      It was again stated that in the event of the above scenario, there was no termination of the Complainants employment as such, it would simply continue with Company C  instead of THE RESPONDENT.

 It was stated that should the Complainant not attend the meeting with Company C to pursue the employment under the "Transfer Regulations" 2003 and should he not avail of any vacant roles in THE RESPONDENT, then his employment would end with THE RESPONDENT at close of business.

The respondent submits that a final vacant role, similar to the Complainant’s original role was offered to him. "Front Line Manager in keeping with your existing RCS N Grade".    The Complainant responded to the email sent on the 31st of August 2022 thanking the respondent and requesting an update on his Annual Leave.    The respondent submits that the Complainant successfully transferred to Company C where he continues to work.

The Respondent disputes that the Complainant was dismissed by reason of Redundancy. The respondent submits that the Complainants role was transferred to Company C.     However, if the Complainant in his own violation did not decide to transfer then it would be viewed as a resignation from his role.    Similarly, the respondent submits that while an employee is entitled to transfer to the Transferee, the European Court of Justice has held that an employee is not obliged to do so.   In Katsikas -v- Konstantinidis1 and Merckx & Neuhuys -v- Ford Motor Co of Belgium2, the ECJ held that an employee has the right to object to becoming employed by a Transferee.

The Respondent would like to highlight that the Complainant did not object to transferring to Company C.

The Respondent would like to note that the Complainants terms and conditions transferred to Company C and that no termination took place.

 The Respondent informed the Complainant at the outset that the contract with Company A was being terminated. The Complainant was kept up to date on all proceedings and informed duly.

The Respondent does note concern caused on behalf of the incoming company and their disregard for the transfer process. Unfortunately, as agreed with Company A in a prior contract with THE RESPONDENT, employees working on the Company A contract would be transferred to the company upholding the contract.

 The Respondent would like to highlight “where reasonably practicable”. THE RESPONDENT was entering into a conciliation process with Company C. Employees were kept up to date and informed frequently on this. The Respondent, at all times, ensured it upheld respect for the employees. The Respondent would like to confirm that on regular consultation meetings and letters held/given to the Complainant the above details were outlined and followed.

The Respondent would like to highlight that two roles of same level experience were offered to the Complainant as part of the TUPE process, to which he declined. The Respondent would like to ensure it is noted that they went above and beyond to ensure that the Complainant was respected and remained in full employment, either with Company C Logistic or THE RESPONDENT itself.

The respondent submits that the roles offered to the Complainant were of Front-line Manager status which again, were of the same level as his current employment.    The Respondent would like to acknowledge the delay in holding the Consultation Meetings with the Complainant and would like it noted that the reason for this was to facilitate SIPTU availability as they were the representing party for the Complainant.    The Complainant actively participated in the process in its entirety and expressed throughout that he was exercising his right to transfer to the transferee company on the 1 st of September 2022.

The Complainants role was transferred to Company C, however, and as was explicitly advised to the Complainant throughout the process that should he decide, of his own volition, that he did not wish to transfer then it would be deemed as a resignation from his role this was outlined extensively to the Complainant.

24. Time-limit on claims for redundancy payment

(1) 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 General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he or she has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he or she is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General–

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his or her ignorance of the identity of his or her employer or employers or by his or her ignorance of a change of employer involving his or her dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his or her proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

The Complainant’s last day of employment with the respondent was 31st of August 2022 and the claim form was submitted on 27th of April 2023 therefore I am satisfied that the claim form was submitted within the 52-week period provided for  in the Redundancy Payments Acts 1967.

The Complainant seeks a redundancy payment in circumstances where he submits that his employment with the respondent ended on 31st of August 2022.  

The Respondent rejects the claim in its entirety. The Respondent submits that the Complainant’s role was never made redundant but that his employment ended on 31st of August 2022 when he transferred over to company C via TUPE transfer and declined an offer to remain in employment with the respondent in an alternative role.

It should be noted from the outset that although there are references to a TUPE and another employer ‘Company C’ the within claim is a redundancy claim lodged against the named respondent only and there was no claim under TUPE legislation. 

The complainant advised the hearing that he was called to the boardroom in February 2022 and was informed that THE RESPONDENT would not be renewing the contract with Company A.    THE RESPONDENT had declined to tender for the contract and had given notice to Company A to exit the building by the 31st of August 2022.

The complainant stated that no other information was given to him and over the next five months he and other employees requested more information, but no information was forthcoming.  The complainant told the hearing that they were repeatedly told that the matter was with THE RESPONDENT legal department and that no feedback was received from site management.  The complainant advised the hearing that every effort was made to avoid the employees.

The complainant told the hearing that he emailed the respondent HR Manager and requested information, only to be emailed back stating this was not in their remit.    The complainant stated that he was left to deal with the fallout from this with his team and had to be the peacemaker.   The complainant stated that he felt  like 25 years meant nothing to the respondent.

The complainant advised the hearing that on the 26th of July 2022 he and other staff members  were given letters informing them of the termination of the Company A contract with no other information.  The complainant stated that  letters were handed to them  with no response from the site manager. He added that there was a lack of engagement from management at all times and that he felt that management only spoke to staff at all because of a legal requirement to inform them of the pending changes.   The complainant advised the hearing that staff were told that they could stay on in the respondent company if they wanted to.

The complainant stated that there was an attitude from management that Company C would need the staff and that they were going to move over to Company C who had successfully tendered for the contract.    The complainant advised the hearing that ,this was said a number of times and that the respondent was under the impression staff would TUPE over.

The complainant advised the hearing that on Friday 29th of July staff were briefed by the respondent management and advised that  the contract for Company A the Chemist was not being renewed and because of this staff would TUPE across to Company C who now had the contract .

The complainant told the hearing that during this meeting the complainant  asked at the time if other options were available and he was  informed, that staff would TUPE across to Company C or a suitable alternative employment.   The complainant stated that the respondent then proceeded to give a list of available roles.  The complainant stated that these roles were out of date and not relevant to their current roles.

The complainant told the hearing that the respondent managers were not forthcoming with any relevant information ,such as contract names of Company C or any THE RESPONDENT roles.   The complainant added that he had previously TUPE d over to the respondent in 2009 and had no issues at that time.

The complainant told the hearing that he felt that the meeting of 29th of July was held by the respondent  just to ensure they informed  staff within legal time frame.    The complainant added that staff were told  to contact the site manager or HR if they had any questions.   The complainant stated that he made numerous attempts to get information both from the site manager ,HR and a site GM only for his emails to be ignored.

The complainant stated that he  approached the respondent HR  a number of times only to be told that he could not give him any information ,other than it was with their legal team.

The complainant advised the hearing that he did attend a One-to-One meeting but that , no note taker was present, and no record of the conversation was recorded .    The complainant stated that when he requested a note taken he was informed that  it was not necessary as a summary of the meeting would be sent.   The complainant pointed out that he was not happy with this and that it was a breach of procedure.

The complainant told the hearing that he was told of an alternative role with the respondent in this meeting.   The complainant stated that he was at this time  told by HR that there was  an FLM role available on another site (Donabate) but that no other information was given ,such as Hours of work or the actual contract.  The complainant told the hearing that he had said that this role was unsuitable as he had no information about the role.

The complainant told the hearing that he informed the respondent that was not suitable and that he would instead TUPE over to Company C as previously advised by the respondent in the event that he did not wish to avail of the alternative role being offered by the respondent.

The complainant stated that he was told that the respondent  had reached out to Company C and If he wanted to attend Company C on the 1st of September they would meet him.    The complainant told the hearing that he  informed the respondent that they had given him a number of letters which had stated that he was TUPE ing over to Company C and that was what he was going to do.

The complainant advised the hearing that during his one-to-one meeting he was informed that if he did not accept the roles being offered ,that by 17.00 on the 31st of August he would no longer be employed by the respondent.     He added that when he told the respondent that this  was not suitable , the complainant said he was told he  could take a case against them, and it would take 18 months.

The complainant told the hearing that he  felt this to be a threatening statement  and that it was a take it or leave it comment.     The complainant told the hearing that he felt there was an aggressive attitude from HR.    The complainant stated that his swipe card and LAPTOP were requested from him and as and from the 1st of September after 25 years he was made redundant, but no redundancy payment was made.

The complainant in his direct evidence and in cross examination clarified that he had told the respondent that he wished to TUPE over to Company C.

The complainant advised the hearing that in spite of the respondent telling him that he would TUPE over to Company C, retaining his existing role this did not happen.  The complainant told the hearing that he met with Company C at a later date and was offered a new contract with them which he accepted but which did not preserve his 25 years’ service.     The complainant said he had never been in trouble or caused any problems, but he felt like his service and loyalty to the respondent meant nothing.

The respondent advised the hearing that there was no redundancy situation as the complainant was offered the option of either transferring over to Company C via TUPE or the option of remaining with the respondent in the same role.   

The respondent advised the hearing that The Complainants employment began on 1st September 2009 with THE RESPONDENT following a TUPE transfer from Company A, The Chemist    On the 5th of July 2022, a letter was sent to  Company C  addressing Company C’s success in securing the Company A contract and stated that  upon contract termination with THE RESPONDENT on the 31st of August 2022, 17 direct employees of THE RESPONDENT would transfer to Company C, under TUPE Regulations, as was the case in a previous TUPE involving Company A and THE RESPONDENT.

The Respondent advised the hearing that  the Complainant was one of the 17 direct employees of THE RESPONDENT to be included in the TUPE Process.

The respondent told the hearing that the complainant was notified of the termination of the Company A contract, by letter which was distributed by site management on the 26th of July 2022. The letter outlined how Company C was taking over the Company A contract upon its termination with THE RESPONDENT.

The complainant was advised that he would be updated of the ongoing progress of the situation. On the 29th of July 2022, employees affected by the Company A contract termination were briefed by THE RESPONDENT site management and told that they would go through a TUPE process to Company C.    The respondent advised the hearing that Company C refused to recognise the TUPE process which resulted in a conciliation hearing concerning the disputed TUPE process, which took place on the 23rd of August 2022 in the WRC between THE RESPONDENT and Company C.

Following on from the conciliation hearing, consultation meetings with employees began. The Complainant’s consultation meeting occurred on the 24th of August 2022.

The respondent advised the hearing that the Complainant attended the consultation meeting where THE RESPONDENT explained that they would be transferring the employees to Company C with effect from 1st September 2022 pursuant to the Transfer Regulations 2003.

The Respondent advised the hearing that it recognised that Company C was resisting the application of the Transfer Regulations and that it was a matter for the employees to assert their rights to transfer to Company C.

The Respondent advised the hearing that it also recognised that this uncertainty and delay could be upsetting and troubling for employees and with this, in mind  THE RESPONDENT proposed a role to the Complainant, if he decided not to exercise his right to transfer.      The Complainant disregarded the role and stated he wanted to transfer, as he wanted a role “like for like” in Company C .     

The Respondent advised the hearing that the Complainant asked what other options were available to him, to which it was made clear that either he transfers to Company C or accept an alternative vacant role suitable to him with the respondent.    The respondent submits that the Complainant confirmed he wanted to transfer to Company C under The Regulations and requested a meeting be set up for him and Company C.

On 26th of August 2022, A letter was sent by the respondent  to Company C. The letter reaffirmed THE RESPONDENT’s position on the TUPE process and clarified that THE RESPONDENT would be transferring employees to Company C.

 It was noted in the letter that 9 employees would now transfer. 8 employees effective as of 1st of September 2022 as 1 employee was on Long Term Absence.

The Respondent advised the hearing that the Complainant met again with HR on the 29th of August 2022 and requested an update and stated that he never received details of roles offered by the respondent as they weren’t given in writing, The respondent advised the hearing that details of these roles were verbally given to him at the first consultation meeting, held on the 24th of August 2022.

The respondent advised the hearing that it had received the Complainants email on Sunday 28th August 2022, requesting a meeting for an update and details on his annual leave balance and pension provider.    The respondent  confirmed to the complainant that he had emailed Company C and stated their position had not changed regarding the TUPE Transfer.

The respondent advised the hearing that the  complainant then proceeded to use colourful language and stated that he felt THE RESPONDENT had treated him unfairly and again, went on to suggest that THE RESPONDENT had not given him an offer of alternative employment.

The respondent undertook to provide specific  details to the complainant along with requested information in relation to pension and annual leave.

 On the 31st of August 2022, another meeting took place with the Complainant and his colleague representative.  The Complainant confirmed he had the right to assert that he would transfer under the transfer regulations. It was confirmed to him that THE RESPONDENT was agreeable to provide him with an alternative role should he choose to remain in THE RESPONDENT and assert his rights not to transfer to Company C.

The Complainant explained that in his opinion the role that was offered to him was not a suitable alternative. The Respondent would like to note that the role that was offered was at the same level that the Complainant had been working previously with no change to his terms and conditions.

The Respondent advised the hearing that the Complainant requested details of Company C  location. It was confirmed to him and stated that Company C would meet with them in a guest capacity.   The Complainant requested details in writing of his termination of employment with THE RESPONDENT. It was confirmed with him that in the scenario that the Complainant wished to transfer to Company C, there is no termination of his employment as such, as his employment would, in THE RESPONDENT’s view, continue uninterrupted with Company C.

Another meeting took place on the 31st of August 2022 in which the Complainant was offered another role as FLM on a sky contract and the Complainant declined. The respondent advised the hearing that the Complainant stated he wasn’t interested as he wanted to transfer to Company C.

 On the 31st of August 2022, an email was sent to the Complainant from the respondent  outlining that further to consultation meetings, the Complainant was provided with opportunities that were available to him within THE RESPONDENT. The Complainant chose not to utilise one of the vacant roles so details on the TUPE were shared.

 The Respondent advised the hearing its position is that under the European Communities (Protection of Employee' Rights on Transfer of Undertakings) Regulations, 2003 (the "transfer regulations") apply in this instance.    However, the respondent acknowledged that Company C did  not share the same view and did not agree that the "Transfer Regulations" applied.

 The Respondent advised the hearing that Company C  had informed THE RESPONDENT that they were refusing to take on any employees of THE RESPONDENT who had been working on the Company A account. 

The Respondent advised the hearing It was noted that Company C were notified that the employees who wished to assert their right to transfer under the “Transfer Regulations” 2003, would be reporting to work at Company C  premises on the 1st of September 2022.   It was noted that Company C informed THE RESPONDENT that on the 1st of September 2022, they would facilitate a meeting with the employees to discuss their position as opposed to accepting THE RESPONDENT employees.

 The Respondent advised the hearing that they advised the complainant that they were still available to meet with the Complainant to discuss the matter, given that the consultation period would end upon the termination of the contract with Company A. (31st of August 2022).

 It was again stated that in the event of the above scenario, there was no termination of the Complainants employment as such, it will simply continue with Company C  instead of THE RESPONDENT.

 It was stated that should the Complainant not attend the meeting with Company C  to pursue the employment under the "Transfer Regulations" 2003 and should he not avail of any vacant roles in THE RESPONDENT, then his employment would end with THE RESPONDENT at close of business.

The Respondent advised the hearing that a final vacant role, similar to the Complainant’s original role was offered to him. "Front Line Manager in keeping with your existing RCS N Grade".    The Complainant responded to the email sent on the 31st of August 2022 thanking the respondent  and requesting an update on his Annual Leave.

The respondent advised the hearing that its position was that the Complainant successfully transferred to Company C  where he continues to work.

The complainant advised the hearing that in spite of the respondent telling him that he would TUPE over to Company C retaining his existing role this did not happen.  The complainant told the hearing that he  met with Company C at a later date and was offered a new contract with them which did not preserve his previous 25 years’ service.    

The claim before me is one of an entitlement to a redundancy payment which the complainant submits he is entitled to as his role with the respondent became redundant from 31st of August 2022.

Again, I reiterate that there are references to a TUPE process but there is no claim before me in respect of a TUPE transfer.    There is also no claim in respect of dismissal.

Section 15 of the Act covers an employee’s disentitlement to redundancy payment for refusal to accept alternative employment.

The Respondent submits that it had offered the complainant suitable alternative roles which would have enabled him to remain in its employment had he chosen not to transfer to Company C.   The respondent advised the hearing that the complainant was very clear in his position that he did not wish to accept the alternative roles offered but instead wished to transfer over to Company C.

The complainant at the hearing stated that the roles offered by the respondent were unsuitable, but he did not provide any details as to why he had considered the roles offered as unsuitable.    The complainant at the hearing also agreed that he had refused the offers of alternative roles made by the respondent opting instead to TUPE over to Company C.

 There was some discussion as to whether the complainant attended for the scheduled meeting on 1st of September with Company C as he stated that he did not deem it to be a transfer. The complainant advised that he dd not in fact TUPE over  to Company C but that he commenced a new employment with company C a week later.  The respondent advised the hearing that neither the complainant or company C advised them that a transfer did not take place, and no issue was raised until the redundancy claim of April 2023.     The respondent added that the complainant is still employed by Company C.

Based on the totality of the evidence, both oral and written, put before me, I am satisfied that no redundancy took place and that the complainant is not entitled to a redundancy payment. I find, therefore, that this complaint is not well founded.

I find that the Complainant in this case is not entitled to a redundancy payment and, that this complaint is not well founded.