ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011004
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 4th January 2018 and 20/02/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 andfollowing 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.
The Complainant had been employed with a named Respondent from 10th March 2003 in varied positions. He was appointed Acting Chief Executive Officer by this Respondent at its meeting on 12th December 2013, subject to the approval of the Minister for a named Department. The Complainant was informed of this appointment which had been approved by the Minister by letter dated 3rd April 2014. This letter dated 3rd April 2014 provides as follows – “ for the payment of a single point salary of €96,726 per annum………This sanction is conditional upon a 12 month appointment or up to the date of the proposed establishment of (named) whichever is the earliest. Following this you will revert to your previous salary and duties ( as per your existing contract with (named)”.
The Complainant’s appointment as Acting CEO terminated on 1st October 2015 on the appointment of the (named) CEO of the Respondent Company. He reverted to a position of Director on a salary of €83,5060 and he continued to work in this position for a period of 19 months until he tendered his resignation by letter dated 13th April 2017 with notice to expire on 12th May 2017. This was not the same position he had occupied prior to his appointment as Acting CEO. The Complainant was appointed as Director on the same salary and conditions he previously held but he claimed this position was commensurate with the position he held as Acting CEO. He continued to work as Director for a further 19 months.
The Complainant commenced employment as Chief Executive Officer with another named Respondent on 16th May 2017 on a salary of €120,000. The Complainant referred two complaints to the Workplace Relations Commission on 30th September 2017, one under the Unfair Dismissals Act, 1977 – 2015 alleging he had been constructively dismissed by the Respondent on 12th May 2017 and a second complaint under the Redundancy Payments Act, 1969 alleging he had been made redundant on 1st October 2015 .
The Complainant had lodged a Grievance with the Respondent on his appointment as Director seeking that he be retained on the same salary paid to him while he had been Acting CEO. This was ongoing from October 2015 until the Complainant lodged a dispute with the Workplace Relations Commission on 2nd August 2016 under the Terms of Employment (Information) Act, 1994 which was subsequently resubmitted under the Industrial Relations Act, 1969 on 7th October 2016 in relation to his salary. This complaint was heard on 5th April 2017 and the Adjudication Officer did not find in favour of the Complainant.
The complaint CA-00014711-001 under the Unfair Dismissals Act, 1977 – 2015 was withdrawn at the Hearing.
Preliminary legal Issues – Section 24, Time Limits on Claims for Redundancy and Section 7 of the Redundancy Payments Act 1967, General right to redundancy payment.
Section 7 of the Redundancy Payments Act, 1967.
Section 7(1) of the Act provides as follows –“ (1) 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 payment of moneys which shall be known (and are in this Act referred to) asredundancy payment”, provided the employee met certain conditions which is not in dispute in relation to this complaint.
The Complainant argued by way of submission at the Hearing that the Complainant’s role of Development Manager had ceased to exist following the termination of his Acting CEO Position on 1st October 2015 and he was appointed to a position of Director. The Complainant was not satisfied with his salary and raised a grievance that this new role was commensurate with his role and duties as Acting CEO and sought retention of his salary. There was considerable exchange of emails between the Complainant and the Respondent between October 2015 and 2016 – copies provided. The Complainant argued that there was no mention of redundancy during these exchanges despite the fact that the Complainant’s previous job had ceased to exist. Had such a possibility been raised and had the actual position with regard to a redundancy situation been laid out properly and correctly, then the Complainant would have been aware of the fact that he was in a potential redundancy situation. The Complainant’s internal grievance was unsuccessful and he lodged a complaint with the WRC under the Terms of Employment (Information) Act, 1994 on 6th August 2016, later substituted by a complaint under the Industrial Relations Act, 1969 which was heard by an Adjudication Officer on 5th April 2017 who did not uphold the Complainant’s complaint. The Complainant tendered his resignation by letter dated 13th April 2017 with notice to take effect from 12th May 2017.
I find that the Complainant was not dismissed by the Respondent but rather he tendered his resignation from his position of Director, which he had been employed as, from 1st October 2015 to 12th May 2017.
Section 9(2) of the Redundancy Payments Act, 1967 is relevant to this complaint. This Section provides as follows – “ An employee shall not be taken for the purposes of this Part to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and (a) in a case where the provisions of the contract is renewed or of the case of a new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract”. The evidence from both Parties was that when the Complainant was appointed into Acting CEO Position by letter dated 3rd April 2014 it was for a specified period of 12 months and/or for a specified purpose being the establishment of a named Sports Body. His appointment was on the basis that following this he “will revert to your previous salary and duties (as per your existing contract with the (named)”. The CEO OF THE Respondent Company was appointed on 1st October 2015, however at that time the Complainant’s previous position of Development Director was no more but he was appointed to the position of Campus Director on the same salary and conditions of employment he had been employed on as Development Manager and this appointment took effect immediately on the termination of his employment as Acting CEO on 1st October 2015 and he continued to work in this position for a further 19 months before tendering his resignation to take effect on 12th May 2017.
Preliminary Issue – Section 24 – Time Limits.
Section 24 (1) of the Act provides as follows – “ Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeksbeginning on the date of dismissal or the date of termination of employment – (a) the payment has been agreed and paid, or (b) an employee has made a claim for the payment by notice in writing given to the employer, or (c) the question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under Section 39”.
Section 24(1)(a) or (b) do not apply to this complaint and the Complainant did submit a complaint to the Director General of the WRC under Section 39 of the Act and therefore Section 24 (1) (c) applies.
However the Complaint was submitted on 30th September 2017 in relation to an alleged redundancy of 1st October 2015. This complaint therefore does not satisfy Section 24(1) of the Act.
Section 24(2A) of the Act provides as follows – “Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment the Adjudication Officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon be so entitled”.
I note that the Complainant in his own submission states that on 1st October 2015 “he was appointed to the position of Director of (named) and expected to carry out the full range of duties and responsibilities that he had done while in the position of Acting Chief Executive”. I further note that the Complainant continued to work in this position for a period of 19 months after 1st October 2015. I note that Section 24(2A) refers to a complaint being submitted before the end of the period of 104 weeks “beginning on the date of dismissal or the date of termination of employment.”
There was no evidence to support the Complainant’s argument that he was dismissed or that his employment was terminated on 1st October 2015.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint. In accordance with Section 39 of the Redundancy Payments Act, 1967 I declare I do not have jurisdiction to hear this complaint as the Complainant did not advance any evidence to support his argument that he had been dismissed or that his employment had terminated on 1st October 2015 in circumstances where the Complainant continued to work with the Respondent as Director for a period of 19 months after the 1st October 2015.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Redundancy – no dismissal or termination of employment in circumstances where the Complainant continued to work with the Respondent for 19 months after 1st October 2015 the date of the alleged redundancy.