ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021397
Parties:
| Complainant | Respondent |
Anonymised Parties | Senior Draughtsman | Window making company |
Representatives | Self | Self |
Complaint(s):
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-00028139-001 | 02/05/2019 |
Date of Adjudication Hearing: 27/06/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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.
Background:
The Complainant is a senior draftsman. The Respondent is a window manufacturing and installation company for commercial projects.
The complainant lodged was in relation to a redundancy payment. The Complainant explained that he worked several weeks while on lay-off where he wasn’t paid.
The Complainant was laid off on the 9th of November 2018. On the 14th of November 2018 he received €500.00 which was part payment for October 2018 wages. On the 13th of December 2018 he received €465.00 which were expenses. On the 20th of December 2018 he received €3,000.00 which was his October 2018 salary. On the 31st of January 2019 he received €603.00 which was his November salary up to the 9th of November 2018.
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Summary of Complainant’s Case:
The Complainant gave evidence as to how he received notice on the 9th November 2019 of his temporary lay- off.
Despite being on lay-off, the Respondent continued to contact him during this period of layoff and demanded that he did work during this time. He was never paid for this work. The Complainant furnished me with a list of emails that related to a project that were sent to him from the 9th November 2019.
The Complainant agreed that he did receive an email from the Respondent stating that he could start back to work. His issue was that was required to attend the Dublin office as opposed to working from home which he did before the period of lay-off.
He advised that the Respondent “begged him” to come back to work.
The Complainant asked for documentary proof that the Respondent could pay his wages and advised that he would have to renegotiate his salary as the Respondent was changing his terms and conditions of employment.
At that stage he was still due payment for work carried out in November/December 2018 and January 2019.
He disputed that what the employer offered him was suitable alternative employment.
He explained that by having to travel 80km to the office as opposed to working from home it would take him two hours each way every day. His evidence was that he was hired to work from home in 2016 and he did some site work. He would travel to Dublin for meetings but no more than three times in any one week. He normally only travelled to the Dublin office once per week.
He calculated his redundancy payment was in the region of €3,500.00. |
Summary of Respondent’s Case:
The Respondent fabricates and installs windows.
The in-house accountant gave evidence on behalf of the Respondent. Her evidence was that the Complainant was laid off on the 9th of November 2018 but that he was asked to return to work full time in January 2019.
The Managing director gave evidence on how the Respondents turnover nosedived in 2017/2018.
He explained how he didn’t have any money and he had to borrow money to pay for salaries.
The Respondent had made three other members of staff redundant in October and November and “others” in the company wanted a redundancy payment.
The Respondent wrote to the Complainant every month asking him to come back and the Complainant declined. The Complainant works in a specialised area. The managing director described his skills as being scarce “like hen’s teeth”.
The managing director travelled to the Complainant’s home to meet with him. At the meeting, the Complainant refused to come back. He said going back to working in the office in Dublin was too far away.
The Respondent’s case is that the role that the Complainant held was not suitable to have working from home. Measurements had to be done on site by other staff members. This in turn lead to mistakes and errors.
When the Complainant was hired he was expected to be in the Dublin office more than he did.
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Findings and Conclusions:
As the Complainant’s claims in relation to outstanding pay were not properly before me for adjudication, I do not have any jurisdiction to consider these additional claims. This is a Redundancy claim. I must firstly decide if the Complainant was dismissed under Section 9 of the Redundancy Payments Acts 1967. 9. Dismissal by employer (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if– (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or [(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or] (c) the employee terminates the contract under which he is employed by the employer [ … ] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.
The evidence presented to me was that the Respondent did not terminate the Complainant’s contract. The Complainant was put on temporary lay -off on the 9th November 2018. I understand that this may have been at the Complainant’s suggestion as the Respondent did not have the ability to continue to pay his wages. I was furnished with emails from the company director dated 3rd January 2019 advising the Complainant that he had work available for him on a full-time basis. There was no time limit on the length of the work available. The company director set out how he needed drawings done now and didn’t want to lose projects. In an earlier email the company director had stated that the Complainant was the “only one that could draw”. The Complainant’s response was that he needed a clear concise information to work on for drawings and set out that he required proof that he would be paid in full and on time, all outstanding wages and pension contributions paid to date and proof that pension contributions would be paid each month. The exchange of emails continued between the parties with the Complainant expressing how he should not have been put in this situation and how it caused him severe financial hardship. The emails from the Complainant didn’t refuse to return to work. The Respondent’s view was that he was not interested in returning. As a result, the Respondent had to outsource the work to third parties. The emails did show how the parties were at cross purposes about the work that was required by the Respondent and the information that the Complainant needed prior to doing this work. The company director was aggrieved that the Complainant questioned his ability to source new work and pay wages. The emails between the parties continued throughout February, March and April 2019. The Complainant’s view was that the Respondent wanted to change his terms and conditions of employment without his consent. The offer of resumed working full time in the Dublin based office was not acceptable to him without the additional costs of commuting being covered by an increase in his salary. His submission was that his initial engagement with the Respondent was on the condition that he work from home. The Respondent was prepared to work out a deal and was anxious to have the Complainant start working on drawings that were needed to meet their obligations to customers. The complainant was offered a position in the Dublin office in January 2019, February 2019 and finally on the 13th May 2019 working Monday to Friday 9.00am. to 5.00pm. The complainant refused to take up this role and requested a redundancy payment. The reason for this was that the Respondents track record was not good regarding payments and the Complainant felt he should not have been put in the situation of failure to pay wages and lay off. This caused him severe financial hardship. The Complainant required his wages and pension payment to be paid up to date before he could agree to the offer of replacement work. Matters came to a head at the start of April 2019. The Respondent’s accountant again sent to the Complainant a breakdown of his pay comparing 2017 and 2018. The Complainant disputed same and replied looking for his redundancy entitlement. The Respondent Managing director replied setting out the interaction dating back to December 2018 when he asked the Complainant to start back to work after his Christmas holidays and again in February 2018 to both requests the Complainant refused. The managing directors email explained how the Respondent could not wait any longer for the Complainant to make up his mind and they had to outsource his work. The Complainant replied attaching his RP9 form with Section B completed. Having reviewed the above evidence, I do not accept that the Complainant was entitled to serve a Notice of Intention to claim a redundancy lump sum on the 8th April 2019. I find that the Complainant was not on lay-off at that time. I accept the Respondents offer of employment from December 2018 and subsequent offers ended the period of lay-off. The work offered by the Respondent was suitable alternative employment. I find that there has been no termination of the Complainant’s employment by the Respondent. In these circumstances I find that the complainant has not been made redundant and therefore is not entitled to a redundancy lump sum. |
Decision:
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.
The complaint is not well founded. |
Dated: 1st October 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Lay-off. Offer of suitable alternative employment. |