ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015256
A chef / demonstrator
A merchandising company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 10/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 39 of the Redundancy Payments Acts 1967 – 2014, this complaint was assigned to me by the Director General. I conducted a hearing on September 10th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
The complainant attended the hearing without representation and was accompanied by her partner. The respondent did not attend.
The respondent is a provider of merchandising and demonstrations personnel to retail grocery multiples. The complainant commenced work as a chef / demonstrator on May 1st 2014. She worked three days per week. Around February 2018, the complainant’s manager informed her that from April, a demonstrator would only be required for one day a week, and that she could apply for this new role. The prospect of a job for one day a week was unacceptable and the complainant argues that she should have been made redundant and paid a statutory redundancy payment.
Summary of Complainant’s Case:
The complainant worked as a chef/demonstrator in a unit of a major retailer in Dublin city centre. She earned €367 per week. The respondent is a company based in Northern Ireland and most of the dealings the complainant had with her manager were over the telephone. She was contracted to work on Wednesdays, Fridays and Saturdays. In February 2018, her manager phoned and told her that, from April 21st 2018, the client wanted a demonstrator in the store only one day per week. She said that she was advised that she could “interview” for the one-day week job.
Having sought advice from the Citizens Information Centre in her locality, on March 15th 2018, the complainant sent a e mail to her manager letting her know that she would not apply for the “new position…as the hours and wage are going to be cut and we are not guaranteed the work we have been given over the last couple of years. The new role would not be suitable for myself as I would need more hours and something more permanent.”
Following this e mail, she said that she had some telephone conversations with her manager and she told her that the thought that she should be get a statutory redundancy payment. The manager said that she would seek professional advice and get back to her. In the run-up to the complainant’s last day at work, she got no formal notice of her termination and no response to her request for a redundancy payment. On April 12th, the manager sent an e mail to confirm that she would meet the complainant the following day, saying, “This will be a without prejudice conversation and that (sic) it is a confidential conversation. Hopefully, it will be in your best interests.” At the meeting, the complainant said that her manager offered her an amount that was well short of what she would have been entitled to if she had been made redundant and she rejected the offer. A few days later, she sent an e mail to her manager setting out the amount she would be entitled to in statutory redundancy. She produced a copy of an e mail at the hearing which showed that her manager responded:
“Thanks for getting back to me. I will forward this and hopefully get a suggestion which is acceptable to both of us.”
The complainant said that she had no further communication from her manager and her last day at work was April 21st. In May, she sent an e mail requesting her P45 and asked for an update regarding a redundancy payment. Her manager responded that she had “no word yet” from her advisors. On June 14th, the complainant submitted her complaint to the WRC.
The complainant’s position is that her three-day week job was no longer available and she was offered the opportunity to be considered for a one-day a week job. She claims that her contract has been changed to the extent that the job she was offered when she commenced employment has changed significantly and is not financially viable for her and she should be made redundant.
Summary of Respondent’s Case:
The respondent did not attend the hearing.
Findings and Conclusions:
From the evidence submitted at the hearing, it appears that the respondent had some intention of reaching a settlement with the complainant, but that the statutory redundancy payment claimed by the complainant was too high.
Section 9(1)(c) of the Redundancy Payments Act provides that an employee shall be taken to be dismissed if,
“the employee terminates the contract under which he is employed by the employer such that he is entitled so to terminate it by reason of the employer‘s conduct.”
As referenced by Anthony Kerr in “Irish Employment Legislation,” the Employment Appeals Tribunal, in the case of McCann v Vantage Wholesale Limited, RP 253/2001, held as follows:
“The word conduct in subsection (c) above does not mean conduct which is necessarily blameworthy, but conduct that can be looked at factually. In the present case the employer’s conduct comprised closing the business. The respondent wanted to continue the claimant as a debt collector with no sales function, and while debt collection had probably always been one of his functions, the primary and no doubt major aspect of his work was selling. Therefore, the nature of his contract of employment was being changed from a long-term sales job, with some debt collecting, to a short-term job of debt collecting with no future sales functions… In terms of the law of contract, the appellant was entitled to treat this action as repudiation of the contract of employment. In other words, the employer had made it clear that it was not going to be continually bound by the existing contract of employment. Given these principles it seems clear to [the Tribunal] that the appellant was “entitled” to treat the employer’s actions as a repudiation, and therefore the case falls within section 9(1)(c) of the Acts.”
In the case under consideration here, the nature of the complainant’s contract was changing from being one where she was employed for three days per week, to one day per week, and she stated that this was unsustainable and she had to seek alternative employment. Like the McCann v Vantage Wholesale case referenced above, no particular blame is attributed to the employer; however, due to the requirements of the employer’s client, the employee’s job was changed to such an extent that it was reasonable for her to resign.
Unfortunately, I have had to consider this matter without any input from the respondent and I am reliant solely on the evidence of the complainant. Having considered the complainant’s evidence, I find that the respondent acted in such a way as to repudiate the complainant’s contract of employment, and, on this basis, in accordance with section 9(1)(c) of the Redundancy Payments Acts, the complainant has established an entitlement to a statutory redundancy payment.
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 decide that, in accordance with the Redundancy Payments Act 1967-2014, and subject to the complainant having been in insurable employment for the requisite period under the Social Welfare Acts, the complainant is entitled to a redundancy lump sum calculated according to the following criteria:
Date of commencement: May 1st 2014
Date of termination: April 21st 2018
Weekly gross pay: €367
Dated: 26th September, 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Redundancy, repudiation of contract