ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022105
Daniel Snihur Independent Workers Union
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: 16/10/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act 1967,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.
The Complainant seeks statutory redundancy payment.
Summary of Complainant’s Case:
The Complainant worked with the Respondent from 2012. In 2018 the Respondent required him to sign a new contract of employment. However, he refused due to a number of issues he had with it. The Respondent continued to put pressure on him to sign and at one point told him the Christmas bonus would not be paid if he did not sign. On 27th March 2019, he was told by his supervisor that the weekend shift was being shut down and he was to be made redundant. On 30th March 2019, his manager told him that he was to be given two weeks’ notice and the Complainant told him he was entitled to 4 weeks and a redundancy payment. His manager said he would check this out. On 6th April 2019, the manager told the Complainant that if he did not wish to be made redundant all he had to do is sign the new contract. On 17th April 2019 the Complainant received a letter from the manager in which he states that if the Complainant does not engage with him by 23th April 2019 he will assume he has resigned. On 18th April 2019 the Complainant lodged a formal grievance with regard to the new terms and conditions. The Complainant received a letter of response to his grievance on 2nd May 2019 which states that the new contract does not allow for him to be moved to other plants without consultation and agreement. It is submitted that the new contract clearly states otherwise. On 21st May 2019 the Complainant delivered a signed RP9 form and there was no response. On 21st June 2019 the Complainant received a letter from the Respondent informing him of being on unauthorised absence and asking him to contact the company within 48 hours. It is submitted that the Complainant is entitled to receive a statutory redundancy payment as (a) the employer did not respond to the RP9 form and (b) an offer of alternative suitable employment was not made to him with the same terms and conditions.
Summary of Respondent’s Case:
The Respondent argues that the Complainant is not entitled to the relief claimed. The company did not lay off the Complainant, and there was work available at all times. The Complainant’s employment was never at threat of redundancy. There are employees with far less service who would have the same skills as the Complainant and on the basis of LIFO would have been subject to redundancy in advance of the Complainant. The company faced significant financial challenges in early 2019 when a major customer moved its business based on cost alone. Following an extensive review, a decision was made to remove the weekend day shift. This had the potential to impact 8 staff who worked there. The company engaged with the employees, informed them that the weekend day shift would cease on 3rd May 2019, and all displaced employees could be accommodated on other shifts. The Factory Manager outlined the opportunities available as:
Monday to Friday
6am – 2pm
2pm – 10pm
10pm – 6am
Friday to Sunday
6pm – 6am
6 of the 8 employees indicated their shift preference and were accommodated. 1 employee resigned as none of the other shifts suited his personal circumstances. The last of the 8, the Complainant did not engage or consider the alternative options. On 17th April 2019 the Factory Manager wrote to the Complainant advising him again of his options. On 19th April 2019 the co-ordinator for the weekend shift emailed the Factory Manager advising him that the Complainant would move to the weekend night shift, however he would not sign the permanent contract drafted and agreed for all employees. There ensued correspondence and meetings between the company and the Complainant at which the Complainant raised grievances and queries and objections as to the wording of his contract. These were dealt with on an informal basis with the right offered to the Complainant to raise them formally. The issues raised by the Complainant included (a) he would not agree that the company had the right to transfer him to another plant (even though this was deemed highly unlikely and he was assured it would be with consultation and agreement) (b) He wished to be called a Machine Operator rather than General Operative (c) He wished to have a higher rate of pay, (d) He wished for the new contract to state he could be accompanied by a trade union representative of his choice (the company has a collective agreement with SIPTU, whereas the Complainant is a member of IWU). The company replied to all his grievances on 2nd May 2019 and advised him that he could raise any formal concerns by 10th May 2019 or if he failed to accept the terms and conditions associated with the role, then the company would have no choice but to presume he resigned from his position. He was scheduled for the weekend night shift and continued to be until 9th June 2019. He failed to attend any shift during that period, and the company had to recruit a replacement. The company received emails and forms from the Respondent and the Respondent’s wife, seeking redundancy, P45 and letter for Social Welfare stating there was no work available for him. The company position was that the Respondent was not laid off and was not made redundant. In early June 2019, in a final effort to resolve the impasse, the Respondent offered the only remaining shift available Monday to Friday 6am to 2pm on his current contract. The Complainant did not return to work nor did he contact the company and the company invoked the AWOL process, which it suspended pending the WRC process of adjudication. The Respondent submits that it has gone above and beyond the bounds of reasonableness and behaved at all times in an honest and ethical manner and submits that the Complainant, not having been laid off or made redundant cannot succeed in his claim.
Findings and Conclusions:
Section 7 of the Redundancy Payments Act 1967 provides for an employee’s right to redundancy payment as follows:
“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short term for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –
(a) he has been employed for the requisite period and
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts…
(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to –
(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed..
In this instant case, I note the evidence that the Respondent had, for economic reasons to shut down the weekend day shift on which the Complainant was employed. However, reasonable alternatives were offered by the Respondent and indeed, the Complainant appeared to have opted for the weekend night shift. He then got into dispute with his employer on aspects of the contract of employment and did not turn up for work thereafter. The Redundancy Payments Act does not provide for employees to make themselves redundant. In accordance with the definition outlined above in the applicable law, I find that the Complainant was not dismissed by the Respondent by reason of redundancy and the Complainant does not therefore fulfil the criteria to be paid a redundancy payment. I find his complaint to be not well founded.
Based on the findings and conclusion above, I have decided that the complaint is not well founded.
Dated: 2nd December 2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Redundancy payment, definition.