ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001179
Complaint/Dispute 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
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 11/10/2016
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 13 of the Industrial Relations Act, 1969 and Section 39 of the Redundancy Payments Act, 1967 and following the referral of the complaint 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 Respondent objected to the complaint under the Industrial Relations Act, 1969 being heard by the Adjudication Officer.
The Respondent was requested to confirm the legal name of the Employer. This was confirmed as named. However at further Hearings on 12th October 2016 one of the Complainants present presented a letter dated 6th May 2015 from a different named respondent. Following further discussion with the Respondent she confirmed the correct name of the Respondent is as stated above under Parties/Respondent.
The Complainant was employed from 28th June 2012 until the employment terminated on 31st August 2015. The Complainant was paid €346.00 gross per week and she worked 40 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment.
The Complainant referred a complaint to the Workplace Relations Commission on 20th December 2015 alleging she had not been paid her Redundancy entitlements on termination of her employment.
Summary of Complainant’s Position.
The Complainant Was employment as a General Operative by the Respondent Company and assigned to work with a Client Company (Named) at their Premises located in Airport Industrial Estate since 28th June 2012.
In August 2015 she was informed that she was no longer to be assigned to the Client Company as this Client had entered into a new Contract with another named Company who would be relocating the operations of the Client Company to a location in Naas, Co Kildare.
She was informed by email dated 7th August 2015 – copy provided – that if she was to transfer under TUPE to a named Transferee and relocate to Naas, Co Kildare that she would have to sign a new terms and conditions in line with their contracts of employment – that she would have continuous service.
The Complainant stated that as she lived in North, Co Dublin and was not in a position to transfer and relocate to Naas, Co Kildare.
The Complainant was issued with a letter dated 14th September 2015 which confirmed as follows: I wish to confirm (named) has finished assignment with our client, as of the end of August 2015 and we do not have any other work available to her right now.
The Complainant is seeking her Redundancy entitlements under the Act.
Summary of Respondent’s Position.
The Respondent acts as a Recruitment Business, it supplies work seekers to client hirers for temporary assignments. She was engaged on a Mobile Worker Agreement with no permanent place of work. Details of the Contract of Employment were presented to the Hearing.
The Complainant was assigned to work with a named Client at Air Business Park Dublin 9 and remained there until the Respondent’s relationship with the named Client was dissolved on 31st August 2015. Operations at the location have ceased.
The Complainant was informed by letter dated 6th May 2015 that her assignment would cease on 31st August 2015. She was informed that the Respondent would look for other suitable assignments.
In August 2015 the Complainant, along with some 50 other employees who had been on assignment to the named Client Company were invited to register with another named employment agency that would now operate at a different location in Naas, Co Kildare.
The Complainant signed a collective complaint to the Respondent dated 27th October 2015 stating their employment with the Respondent had ended and the Complainant’s were seeking redundancy pay.
The Respondent wrote to the Complainant on 2nd November 2015 stating her complaint would be investigated. The Respondent issued a further letter on 6th November 2015 informing the Complainant she was still employed by the Respondent and that the ending of her assignment did not constitute the ending of the employment relationship.
The Complainant has not been made redundant and therefore is not entitled to payment of Redundancy.
The Respondent confirmed at the Hearing that the Complainant had not been offered any further work with the Respondent since August 2015.
The Respondent stated that if the Complainant was entitled to be paid her Redundancy then the payment was calculated as €2546.56
The Respondent issued a letter to all its employees, including the Complainant, dated 6th May 2015 which confirmed that the Complainant’s assignment with a named client would terminate on 31st August 2015. The letter goes on to state as follows: “Our plan once your assignment has finished will be to bring you all in for a refresher manual handling course and reregistration….After this has occurred we will then begin the process of looking for other jobs for you all”
The Respondent confirmed at the Hearing that the Complainant had not been invited in for a refresher course not has she been offered any alternative employment since August 2015.
Section 7 of the Redundancy Payments Act, 1967 provides as follows:
An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided – (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts immediately before the date of the termination of his employment……
Section 7 (5) of the Act defines “minimum period” as a period of 104 weeks continuous employment
By the employer who dismissed him, placed him on lay-off or kept him on short-time.
Section 7 (3) of the Act provides as follow:
For the purposes of subsection (1), an employee shall be taken as having been laid offor kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks…..
The evidence shows that the Complainant was employed for 104 weeks by the Respondent Company since 28th June 2012. The evidence shows that the Complainant’s assignment to a client company terminated on 31st August 2015. The evidence shows that the Complainant was kept on lay-off effective from 1st September 2015 and has not been offered any other employment with the Respondent since that date.
Therefore I find that in all respects the Complainant complies with all the requirements of the Act of 1967 and is therefore entitled to payment of Redundancy as defined by the Act.
In accordance with Section 39 of the Redundancy Payments Act, 1967 I declare the complaint lodged under the Redundancy Payments Act, 1967 is well founded. The Complainant was placed and kept on lay-off effective from 31st August 2015 and has not been offered alternative employment by the Respondent from that date.
I direct the Respondent to pay the Complainant her Redundancy entitlements in accordance with the Redundancy Payments Act, 1967 within 42 days of the date of this Decision.
Date 19th January 2017,