ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002430
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 06/09/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 39 of the Redundancy Payments Act, 1967, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
A Hair Salon
Complainant’s Submission and Presentation:
The complainant worked as a barber for the respondent from 20th November 2003 until 23rd October 2015. He had worked in Monaghan town originally, but transferred to Kilkenny in 2008 when the business moved there. On 23rd October 2015, when the complainant reported for work he was told by the landlord that the property was being re-possessed due to non-payment of rent. When he contacted his employer the complainant was told to go home and that the situation would be sorted out. The shop never re-opened. The complainant got his week’s wages by post the following week. The complainant subsequently visited the respondent at a shop in Wexford and asked for his P45 and redundancy payment. He received his P45 approximately two weeks later but did not receive a redundancy payment. On 2nd November 2015, the complainant received a letter from the respondent regarding re-employment in a shop in Wexford town. As the complainant’s family were settled in Kilkenny, and to travel to Wexford for work would involve costs which were impractical, it is argued that this was an unreasonable request. It is submitted that the complainant is entitled to a redundancy payment.
Respondent’s Submission and Presentation:
The respondent accepts that the complainant’s employment came to an end by reason of redundancy. In 2015, the respondent’s business became financially unsustainable which was in large part caused by high levels of rent. In October 2015, the respondent was required to close the Kilkenny business as a result of outstanding rents. On 21st November 2015, the respondent wrote to the complainant offering him alternative employment in a barber shop which he intended to open in Wexford town. Subsequently, he did not open the barber shop. It was opened by another employee with whom he is now employed.
The respondent accepts that the complainant was continuously employed from 2003 to 2015. It also accepts that the complainant’s employment came to an end by reason of redundancy. However, the respondent submits that the complainant is not entitled to a redundancy payment as a result of his failure to accept a reasonable offer of alternative employment. Section 15 of the Act provides that an employee shall not be entitled to a redundancy payment if the employer has offered to renew the employee’s contract or to re-engage him under a new contract of employment. It is submitted that the offer of alternative employment was made on the same terms and conditions, with the exception of place of employment. It is argued that in an era where employees are required to travel far greater distances to attend work, the change of location was not unreasonable.
In any event, should the adjudicator find redundancy payment is warranted the respondent is not in a financial position to discharge any redundancy lump sum.
It is common case that the complainant’s employment came to an end by reason of redundancy. The respondent relies on Section 15 of the Act in support of his argument that the complainant is not entitled to a redundancy payment. In particular, the respondent argued that the complainant was offered re-engagement under the same terms save that of location.
Section 15 (1) (b) provides that “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 his dismissal”.
Section 15 (1) (c) provides that “the renewal or re-engagement would take effect on or before the date of dismissal”.
I find that the arguments relating to what constituted an “unreasonable” refusal of the offer of re-engagement are moot, as the respondent did not re-open his business following the redundancy.
I uphold the complainant’s claim and find that he is entitled to a redundancy payment of €7,955.20.
Dated: 9th December 2016