ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006007
Parties:
| Complainant | Respondent |
Parties | A Restaurant Assistant | A Fast Food Restaurant |
Representatives |
| Nora Cashe, Peninsula Group Limited |
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-00008304-001 | 22/11/2016 |
Date of Adjudication Hearing: 01/08/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
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 was employed in the respondent’s restaurant commencing employment on 11 March 2011. He worked initially in a full-time capacity and in 2013 it was agreed that his hours would reduce to 22 - 25 hours per week. He was paid the relevant National Minimum Wage. In July 2016 the complainant requested to return to full-time working. The complainant’s working hours were subsequently reduced and he was rostered for one day per week. In September 2016 the complainant went on sick leave for approx. two weeks. On 11 October 2016 he wrote to the respondent indicating his intention to resign because of his reduced hours and requesting that he be made redundant. The respondent refused this request on the basis that there was not a redundancy situation. The complainant terminated his employment on 25 October 2016. |
Summary of Complainant’s Case:
Following a request to return to full-time working the complainant’s hours were reduced to working one day per week. The respondent employed two new staff at this time. After 5 years of trouble-free employment the respondent began issuing disciplinary warnings for very small things. These actions caused the complainant great worry and he was diagnosed with stress and depression and went on sick leave. Because of this and the reduction in hours the complainant requested that he be made redundant but the respondent refused. The complainant resigned. |
Summary of Respondent’s Case:
The complainant resigned from his employment giving two week’s notice. There was no redundancy situation in the company at the time. The complainant was advised that his job was still there for him and to let the respondent know when he wished to return to work. The complainant did not submit a RP9 Form to the respondent. Of the two new staff employed at that time, one was to replace a person who had left and the other was employed as maternity leave cover. The respondent had an issue with the complainant due to underperformance.
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Findings and Conclusions:
It would appear that there was a normal working relationship between the parties until mid 2016. The complainant had worked full-time until 2013 when there was an agreement that he would reduce his hours to a three-day week. The respondent submitted a copy of a contract for the complainant dated 30 October 2011 which listed his working hours as 15 – 22 hours per week but had a flexibility clause in relation to extra hours. There was a further contract dated 10 August 2015 which listed the working hours as 8 – 24 hours per week. The respondent stated that he had been under the impression that he was obliged to issue new contracts to staff whenever the Minimum Wage changed and this was why that contract issued. The complainant said that he had not been given a copy of this contract but when he signed it he was told that nothing would change. The manager who issued the contract has since left the company. The P60 Form for 2015 shows that the complainant worked an average of 23 hours per week that year. It is accepted that the complainant requested full-time working in July 2016. The respondent stated that his understanding of the request was that it was for a temporary period of 4 -5 weeks. What is clear, however, is that this request was not granted. The respondent stated that an arrangement was agreed whereby the complainant would work one day and be paid two days’ holiday pay and that this arrangement lasted from early July 2016 until the start of August (weeks 27 – 31). The pay slips for this period show that the complainant was paid a mix of working pay and holiday pay with the working time mainly of one day per week. The pay slips for the following weeks up to the termination of the complainant’s employment indicate a continuance of single day working with the exception of week 34 when the complainant was paid for 17.91 hours. Within this, however, are two periods when the complainant was absent on certified sick leave, i.e. 16 September to 20 September and 23 September to 30 September. The complainant’s employment terminated on 25 October 2016. The respondent’s owner explained that he had become dissatisfied with the complainant’s job performance and that he had spoken to the complainant in this regard. It was for this reason that he had decided to reduce the complainant’s hours. Documentation regarding this underperformance was submitted. Apart from reference to a verbal warning issued in May 2015 all of the events recorded refer to a period between 18 August 2016 and 11 September 2016 (total 26 offences). This culminated in a Final Written Warning being issued to the complainant on 22 September 2016. It is therefore clear that these events occurred after the decision to reduce the complainant’s hours had been taken by the respondent. The complainant’s contract states the Disciplinary Procedure is set out in the Employee Handbook but this was never issued to the complainant nor was a copy provided at the hearing. An examination of the procedure utilised to issue the Final Written Warning shows it to be defective and in breach of S.I. No. 146 0f 2000 (Code of Practice on Grievance and Disciplinary Procedure). On 11 October 2016 the complainant wrote to the owner. It should be noted that the complainant is a non-national and that English is not his mother tongue. The letter stated: “Please accept this letter as formal notice of my resignation from the position of…… I have worked for you for 5 years and this has been difficult decision to make….” The letter went on to reference the reduced hours and the issuing of a Warning and said that this had resulted in the complainant suffering stress and depression. The letter then stated: “Due to the above you forced me to leave so I ask you to pay my redundancy.” A cover letter stated that the complainant was giving two weeks’ notice with effect from 11 October 2016. A meeting took place between the parties. It is agreed that the respondent stated that no redundancy existed. The owner said that he advised the complainant that his job was there for him whilst the complainant stated that he required his 3 days back and was not interested in working one day per week. His alleged underperformance was also discussed. The definition of short time working for the purposes of the Redundancy Payments Acts, 1967 – 2014 is contained in Section 11(2) of the legislation which states:
Where – (a) for any week an employee’s remuneration is less than one half his normal weekly remuneration or his hours of work are reduced to less than one half of his normal weekly hours, (b) the reduction in the employee’s remuneration is caused by a diminution either in the work provided for the employee by his employer or in other kind of work of a kind which under his contract the employee is obliged to do, (c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.
In this case the employer did not give notice in respect of the reduction in hours nor was it put forward as a temporary measure in respect of the complainant. As explained by the respondent, his actions in reducing the complainant’s hours were as a response to what was considered to be a lack of performance on the part of the complainant and not due to a lack of work. In addition the respondent believed that the hours he did provide were within the contractual obligations of the last contract signed by the complainant. Section 12(1) of the Act states; An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless – (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of lay-off or short-time, he gives to his employer notice (in this Part referred to as notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. I have grave reservations in relation to the procedures adopted by the respondent in respect of the decision to reduce the complainant’s hours as noted above. This complaint is, however, presented under the Redundancy Payments Acts, 1967 – 2014. I find that the reduction in hours does not constitute short-time working within the definition of that Act and that a redundancy situation did not exist in the respondent company. |
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.
Complaint No. CA-00008304-001: As set out above I find that the circumstances in relation to the termination of the complainant’s employment did not constitute a redundancy situation and that consequently the claim for a Redundancy Payment fails. |
Dated: 12th September 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
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