ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004337
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
2nd August 2016
Date of Adjudication Hearing: 29th September 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Act 1967 and following the referral of the complaint(s)/dispute(s) to me by the Director General, 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.
The Complainant was employed by the Respondent from either 8th November 2004 or 1st January 2006 and he was submitting that he did not receive statutory redundancy payments from the Respondent.
Summary of Complainant’s Case:
I was employed by the Respondent who had a transportation contract with a Public Bus Company. I was the designated driver for the route involved. The Bus Company rules stated that no drivers could operate for them or businesses contracted to them on reaching the age of 70. I was 70 on 12th April 2016 and the day before that date (11th April 2016) I did my last Bus Company run for the Respondent. As I was employed and paid by the Respondent he stated on the 11th April that he had other work for me on a local rural link transport system that was operating in the area. He informed me that he would be in contact with me regarding working days and hours, but to date I have not heard from my employer. On the 20th June I send an RP9 to my employer but received no response. I wanted to give the respondent every opportunity to address the matter and on 12th July I wrote to him again suggesting that if I did not hear from him within 10 working days I would be passing the matter on to the Workplace Relations Commission. I had no response from that correspondence either. I am now asking the WRC to follow this matter up on my behalf.
The Complainant said that he did his last School Bus run for the Respondent on 11th April 2016 and he was promised other alternative driving work for the Respondent, but the work did not materialise.
In response to questions the Complainant confirmed that he had been directly replaced on the School Bus Run and that that work/position continues.
Summary of Respondent’s Position:
The Respondent confirmed that the Complainant had ceased work on the school bus run in April 2016 and that they did in fact offer the Complainant alternative work in rural link type driving. The Respondent said that this offer was subject to:
The Complainant completing a medical examination
The Complainant completing compulsory training -and-
The Complainant completing a MIDAS Course, for which the Respondent would pay.
The Respondent said that he had not yet secured or signed up to this work, but that he expected to do so shortly.
The Respondent submitted that what occurred was not a redundancy as defined by the Redundancy Payment Act 1967 and that accordingly the complaint under that Act was not well founded and that it should be rejected.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments 1967, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of that Act.
I have carefully considered the evidence and the submissions made I have concluded as follows.
The sole and only complaint made by the Complainant is that he did not receive his statutory redundancy payment. In order to qualify for a redundancy payment an employee must have been dismissed by reason of redundancy as defined by the Redundancy Payments Acts – and accordingly I must first decide if the Complainant was dismissed by reason of redundancy as defined before I can consider if he had any entitlement to a statutory redundancy payment.
Section 7 of the Redundancy Payments Act 1967, as amended by Section 4 of the Redundancy Payments Act 1971 and Section 5 of the Redundancy Payments Act 2003 in the definition of redundancy states:
“…….an employee who is dismissed shall be taken to be 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: (my emphasis)
the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him or has ceased or intends to cease, to carry on that business in the place where the employee was employed, or
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, or
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
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
the fact that the 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.”
It is not in dispute that the Complainant ceased the work he had been performing on the school bus run for the Respondent and it is not in dispute that the Complainant was directly replaced by another employee performing that same work and that this work continues on exactly the same basis as performed by the Complainant. Plainly what occurred in the instant case does not fall with the definitions contained in (a) to (e) quoted above and in addition and equally plainly what occurred is related to the employee concerned. Thus I must find and declare that what occurred in the instant case was not redundancy as defined in the Redundancy Acts and consequently the provisions of the Redundancy Acts do not apply in the instant case.
Based on the foregoing I must find and declare that the complaint under Section 39 of the Redundancy Payment Act 1967 is not well founded; it is rejected and is not upheld.
Dated: 14th December 2016