ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008594
Parties:
| Complainant | Respondent |
Anonymised Parties | A Machine Operator | A Stone Cutting Company |
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-00011260-001 | 11/05/2017 |
Date of Adjudication Hearing: 01/12/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
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, a Lithuanian national, was employed as a machine operator by the Respondent (a Stone cutting company) from 9 January 2006 until 1 March to 17. He worked a 40-hour week and in an was in receipt of wages of €530 per week.
Summary of Complainant’s Case:
The Complainant maintained that following a short layoff in 2013 he returned to work in February 2013 and within a couple of days of his return to work he received an injury which necessitated him taking sick leave from that point. He remained ill until the 1 November 2016.
When he returned to work he submitted that due to his medical situation he was not allowed work as a Machine Operator. Following discussions with the Respondent the Complainant was offered an alternative job at the Respondent’s shop which was some distance from his former place of work. He maintained that this job was at a lower wage, and also it required some travel which was costly to him. The Complainant maintained that as the Respondent failed to provide him with the same rate of pay, or provide him with travel expenses he resigned his position. The date of his resignation letter was the first of 11th November 2016.
The Complainant submitted that as the Respondent did not find him a job with similar pay and conditions his role was made redundant and he was seeking his entitlements under the Redundancy Payments Act.
Summary of Respondent’s Case:
The Respondent advised that the Complainant suffered a back-injury in February 2013 and where it kept the Complainant’s position open until he was fit to return to work in 2016. In the interim, it employed another operator on a temporary basis.
The Respondent maintained that in November 2016 the Complainant sought to return to work but it required medical report from the Complainant in order to assess is medical situation in light of his injury and the extended period of sick leave.
The Respondent submitted that it received a medical report from the Complainant’s doctor in December 2016 which advised that following an incident on 27th February 2013 the Complainant was suffering from neck pain and nerve pain, and where his symptoms persisted. This medical report suggested the possibility of other work, such as a desk job, that might be suitable for the Complainant. However, the medical report also observed that any alternative work would be dependent on the amount of neck movement, as such movement could cause the Complainant’s symptoms to flare up.
As a consequence, the Respondent sought and found alternative work for the Complainant in its shop, but where there was further distance for the Respondent to travel from his home to the place of work, and it also required some adjustment to his wages as it was not at the same level of skills as a Machine Operator. The Respondent submitted that the Complainant did not take up this offer and that and consequently, despite a number of efforts in asking to Complainant to reconsider, he resigned and asked for his P 45.
The Respondent maintained that in accordance with Section 7 of the Redundancy Payments Act that a redundancy did not exist as the Respondent had not ceased to carry on the business, or that the kind of work the Complainant was employed to do had neither ceased or diminished. It also maintained that the work was not expected to cease or diminish; or that it had decided to carry out the business with fewer or no employees; or that the work should henceforth be done in a different manner in which the Complainant was not sufficiently qualified or trained. Neither had it decided that the work for which the Complainant had been employed to do should henceforth be done by a person who was also capable of doing other work which the Complainant was not sufficiently qualified or trained to do. The Respondent maintained that his job was open to him, however in light of the Complainant’s medical report it could not redeploy him as a Machine Operator until he was medically fit. It therefore offered him alternative employment but he rejected this offer and resigned his position.
Accordingly, the Respondent submitted that the complaint for redundancy is misconceived, that the Complainant cannot claim relief under the Act, and as such argued the claim was not well founded and should fail.
Findings and Conclusions:
Having considered the evidence presented, I am satisfied that the Complainant was injured in February 2013 and as a consequence availed of long-term sick leave. The Respondent kept his job open over an extended period of time, and where the job was filled temporarily by somebody else. I also find that when the Complainant sought to return to work in November 2016 the Respondent was reasonable in seeking a medical report. It is clear the medical report submitted by the Complainant indicated that due to his ongoing medical condition alternative work should be sought for him. The evidence also supports that the Respondent on at least two occasions asked the Complainant not to resign, and did seek alternative work for him, albeit the conditions of employment offered would have changed in light of the nature of the alternative work. The Complainant was not satisfied with these alternative arrangements and therefore resigned his position.
On that basis I do not find the job was made redundant, or that the Complainant was dismissed due to a redundancy situation as identified in Section 7 of the Act.
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.
As I have not found a redundancy situation existed I do cannot uphold the complaint for a redundancy payment and therefore decide the complaint fails.
Dated: 6.4.18
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Redundancy Payment |