ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006615
A Ground Worker
A Ground Work Company
Complaint 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 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 10/05/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
On 22 December , 2016, the Complainant , a Ground Worker claimed a lump sum payment for redundancy and payment in lieu of notice relating to the conclusion of his employment in the Construction Industry on 21 November, 2016.
Summary of Complainant’s Case:
The Complainant commenced work on 23 April, 2014 and earned 800 euro gross pay per week. He had worked for the respondent at three different locations in Ringaskiddy, Cork City and Carrigtwohill .On 18 November, 2016, he was engaged in man hole inspections at the latter site and was the last employee on the site. He understood that he had an expectation of another months work on the site as a number of the manholes had collapsed .On the following Monday, the respondent called him at 13.41 telling him that he was fired from that day on, with an offer of work in Ennis .He sent a text to the Office Administrator telling her that he had been fired and sought his finishing paperwork .He received his final salary and outstanding annual leave on 25 November, 2016.
On 25 November, he received a phone call from the respondent asking him if he would go to work in Ringaskiddy. The line was bad .He had courses lined up the following week, so he declined. On Friday, 2 December, 2016, he sent a registered letter to the respondent seeking redundancy. He had work arranged separately, but it had not materialised .He signed on for job seekers benefit with the help of a letter from the respondent on November 22 and did not receive payment for the first three days. He had worked without a break for two years .He sought a lump sum redundancy payment and payment in lieu of notice.
The Complainant contended that he couldn’t wait around and he had to get a job .He confirmed that he did not consider the job offer made to him for Ringaskiddy on November 25 as reasonable .
Summary of Respondent’s Case:
The Respondent disputed both claims. He gave evidence that he had employed the complainant from 23 April, 2014 to 21 November, 2016. He had worked out well for the company .It was common case that during November 2016 the work on the site where the complainant was based was coming to an end .On Saturday, 12 November, he recalled telling the complainant that there were three more work days on the site .He confirmed that he phoned the complainant on 21 November to tell him that there was no more work.
He understood that the complainant was to be placed on lay off and posted a letter to assist in job seekers benefit rather than a letter of termination .He submitted that he had joked about Ennis being a possible work location given that it was the county of origin for the company .
The Respondent had work at Ringaskiddy and sought to make contact with the complainant during the course of the week , but was unsuccessful. He rang him on Friday 25 and the phone line was bad .He sent a text on Sunday, November 27 @ 7.30 pm offering work the next day in Ringaskiddy. He did not receive a reply to the text. He believed that “something funny “was going on with the complainant’s phone.
The Complainant confirmed that he had made alternative arrangements and sought his P45 on December 1, 2016.The Respondent lost the job at Ringaskiddy as the complainant was not available. The Respondent submitted a letter from the Project Manager for the work in Ringaskiddy and Carrigtwohill which indicated that another civil works contractor had to be engaged when the Respondent was unable to complete the work.
The Respondent contended that the offer of Ringaskiddy was a reasonable one given the proximity to the complainants home .The Respondent contended that the company would not have had a difficulty in paying redundancy had work not become available within 6 weeks of the complainants last day on site.However, under the circumstances, he chose to refuse work in Ringaskiddy, thus voluntarily leaving his employment and surrendering his right to redundancy.
Findings and Conclusions:
I have carefully considered the submissions received from both parties. I find that the complaint is hampered by the lack of a contract of employment issued to the complainant .This , at least may have offered a basic road map to navigate the set of circumstances which emerged for the parties in November 2016 .
For the purposes of the Redundancy Payments Acts an employee is dismissed by reason of redundancy if for one or more reasons not related to the employee concerned ,his dismissal is attributable “ wholly or mainly” to one of the five situations outlined in Section 7(2) of the Acts .This is linked to “ impersonality and related to change”. St Ledger V Frontline Distributors Ireland ltd  ELR 160.
I found that the complainant had a clear understanding that his job was gone on November 21, 2016.This prompted him to seek his “closing papers “.The Respondent submitted that the cessation of the work at Carrigtwohill was always meant to be replaced by another posting for the complainant, yet, I was not afforded any record of a real time communication between the parties to that extent. Instead I considered the letter raised by the respondent dated 22 November.,2016
“ To whom it may concern”
The above named employee has been an employee of X company .His last day of employment was Monday 21 November, 2016.Please contact me should you require any additional information.
I am satisfied that both parties understood that this constituted a letter of Introduction for Job seekers benefit .The Respondent intended the letter to cover a period of temporary lay off , but the complainant did not interpret it in that way .He organised courses on November 24 and planned another job that did not materialise .
If the Respondent meant the period post November 21, 2016 to constitute a temporary lay off, he ought to have placed the complainant on notice of this prior to his cessation. This did not happen. Part A of the RP 9 could be used in this regard .I appreciate that the complainant felt that he couldn’t wait around and he had to get a job. However, the complainant sought his own P45 on December 1.This post dated the offer of follow on work at Ringaskiddy.
While I appreciate that there is some ambiguity regarding lay off and dismissal between the parties. Section 15 of the Act sets down the statutory eventuality covering the circumstances where a refusal to accept alternative employment unfolds.
Section 15(2) of the Act states that an employee shall not be entitled to a redundancy payment if
(a) His employer has made to him in writing an offer to renew the employee’s contract or to re-engage him under a new contract of employment.
(b) 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 employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of contract.
(c) The offer constitutes an offer of suitable employment in relation to the employee
(d) The renewal or re-engagement would take effect not later than four weeks after the date of termination and
(e) He has unreasonably refused the offer.
I have found that the letter of 22 November 2016 constituted a letter of Dismissal rather than a notification of temporary lay off. However, I am of the opinion that a redundancy situation did not exist as the complainant was offered continuing employment in his Ground Worker role, a role he had filled for over two years .I have found that the offer of a reciprocal , unaltered role within a reasonable commutable distance constituted a suitable offer within the four week date of termination and he unreasonably refused the offer.
The Complainant sought two weeks pay in lieu of notice in accordance with Section 4 of the Act. The Respondent disputed the claim when he denied that a dismissal had taken place. I have found that a dismissal occurred and was followed by an offer of re-engagement.
Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides that
Minimum period of notice.
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,
I find that the complaint is well founded and the complainant is entitled to receive his pay in lieu of notice in accordance with 4(2) (b) of the Act .
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have found that the claim is not well founded and cannot succeed.
Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires me to make a decision in accordance with the relevant redress provisions under the Act.
I have found that the complaint is well founded and I order the respondent to pay the complainant 1600 euro in compensation for the breach of the Act.
Dated: 24TH July 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Redundancy , Minimum Notice