Complainant

Respondent

Parties

Samantha  Cooling

Sodexo Ireland Limited

Representatives

Maeve Fenton BL instructed by Sean Finn, Feeney & Corcoran LLP

Sinead Cockram, The HR Suite

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-00064100-001

14/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00064100-002

14/06/2024

The Complainant commenced employment with the Respondent as a Food Service Assistant on 24 January 2011 on Site X in Dublin. On 11 May 2015, the Complainant was promoted to the role of supervisor.

The Complainant stated that she was entitled to both a redundancy and notice payment when she was dismissed by the Respondent.

On or about 13 November 2023, the Respondent wrote to the Complainant informing her that from 15 December 2023, they would no longer be providing services at Site X, but the date on which the new service provider would be operating was not specified. The letter stated that the Respondent anticipated this change in service provider could constitute a transfer to which the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) would apply and specified the applicable provisions in such an event together with additional non-specific and non-applicable general information.

The Respondent discussed alternative options of employment with the Complainant prior to ceasing its service in Site X and further to same, on 6 December 2023, the Complainant wrote to the Respondent seeking work on an alternative site. The Complainant subsequently interviewed for a role on Site Y with Mr Raphael Blondel approximately one week later.  Although she was successful in her application for the role, she stated that she refused the job offer initially and accepted in cross examination that she remained on Site X and transferred to the new provider there after 15 December 2023.

She subsequently changed her mind however and called Mr Blondel back a few days later and informed him that she would accept the job that had been offered by the Respondent on Site Y. She also stated that during this conversation she asked Mr Blondel about retaining her prior length of service with the Respondent and alleged that he stated he would do his best to do so.

She subsequently began the new role with the Respondent on Site Y on 2 January 2024.

On or about 13 November 2023, the Respondent wrote to the Complainant informing her that after 15 December 2023, the Respondent would no longer be providing services at Site X, and that her employment would transfer to the new provider.

She was subsequently interviewed for a role on Site Y by Mr Raphael Blondel a few days before the transfer. Mr Blondel stated that he offered her the role straightaway because he was conscious of the impending transfer date. He further stated that he told the Complainant during the interview that she would have to start the job before the transfer date to ensure that her service was retained. He stated that the Complainant told him that she would need time to consider the offer. She called him back a few days later and informed him that she was declining the offer.

She subsequently rang him the week after the transfer on 15 December 2023 and asked him if the job was still available. He informed her that it was, and they agreed that she would start on 2 January 2024 because the offices were soon closing for Christmas.

CA-00064100-001:

THE LAW

Section 7(2) of the Redundancy Payments Act, 1967, states:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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.

(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.”

Findings:

The Complainant stated in her evidence that she voluntarily transferred to the new provider under the TUPE Regulations after the Respondent’s contract on Site X came to an end on 15 December 2024.

Even if I accept the Complainant’s evidence that Mr Blondel informed her that he would “do his best” to retain her service with the Respondent when she rang him after her employment had transferred to the new provider on Site X, there was no evidence presented to suggest that he did so.

I also note that Mr. Blondel, in his evidence, stated that he told the Complainant during the interview that she would have to start the job on Site Y before the transfer date on Site X to ensure that her service with the Respondent was retained.

Given that the Complainant’s employment transferred from the Respondent to the new provider on site X after 15 December 2023, and in the absence of any evidence whatsoever to suggest that she was ever definitively informed that her prior service would be maintained at any stage before or after her resumption of employment with the Respondent on 2 January 2024, I do not allow this appeal.

CA-00064100-002:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

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.

Findings:

As the Complainant stated that she voluntarily transferred to the new service provider after 15 December 2023, I find that there was no dismissal by the Respondent. Accordingly, she is not entitled to any notice payment.

CA-00064100-001:

I do not allow the appeal for the reasons set out above.

CA-00064100-002:

I find that the complaint is not well founded for the reasons set out above