ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037075
Parties:
| Complainant | Respondent |
Parties | Gerard Stynes | Towerbrook Ltd t/a Castle Durrow |
Representatives | Self-Represented | Ms S Stokes & Mr L Leidig Owner/Managers |
Complaint:
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-00048330-001 | 24/01/2022 |
Date of Adjudication Hearing: 04/10/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 & Section 39 of the Redundancy Payments Acts 1967 - 2014following 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
There were no issues raised regarding confidentiality in the publication of the decision.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
Background:
The issue in contention concerned a claim for Redundancy, from the Complainant, against a Midlands Hotel.
The employment, as a Hotel maintenance person, commenced on the 10th of November 2000. As a result of the Covid emergency, the Complainant was put on reduced hours in March 2020 and full time Lay off in August 2020. The eventual end date of the employment was heavily contested by the Parties. The rate of pay was the then Statutory minimum wage for the number of hours worked per week. |
1: Summary of Complainant’s Case:
The Complainant gave an Oral Testimony supported by some written documentation. He had been initially laid off in March 2020 at the start of the Covid pandemic but had been brought back in May 2020. At the start of the second major national shut down in Hospitality in the late Summer of 2020 he had been fully laid off. The Respondent had communicated with him by monthly letter until March 2021 when all correspondence ceased. He next heard in writing from the Hotel in March 2022. He telephoned the Hotel at or around Christmas 2021 but got no realistic details. Eventually, in frustration, he lodged an RP9 form on the 23rd of December 2021 but never received any acknowledgement or reply. Accordingly, he was now seeking Redundancy from his start date of November 2000 to the end of December 2021. In cross examination from the Respondent, he absolutely denied ever receiving any letters, texts or other communication from the Employer regarding a return to work in early 2021. He agreed that he had been on the full PUP of €350 per week until it transferred to ordinary Job Seekers benefit. On questioning from the Respondent, he agreed that had taken up another job in Abbeyleix in early 2021. He could not recall the exact dates but offered to supply them post the Hearing. In summary his case was straightforward. He had been laid off as a result of Covid and never re employed. He was due Statutory Redundancy. |
2: Summary of Respondent’s Case:
The Respondent Principal, Ms Stokes, gave an Oral Testimony supported by documentation. Covid 19 had devastated the Hospitality/Hotel Sector. The Complainant had been laid off in August 2020. The business reopened in late April 2021. They had made numerous efforts, by phone and registered letters, to contact the Complainant. Copies of Registered Letter receipts were presented in evidence. On Receipt of the RRP9 in early 2022 they again wrote to the Complainant. They had made it clear that his job was available and had always been available for most of 2021. A date of the 21st March 2022 was given as a further return to work date. No reply was received, and they had become aware, shortly afterwards, that the Complainant was now employed elsewhere. They maintained that it was well known that here was a major staff shortage in the Hotel/Hospitality Sector. They had plenty of work for the Complainant since early 2021 and it was a complete mystery why he had chosen to ignore for most of year 2021 their communications regarding his return to work. Accordingly, the redundancy claim was completely unwarranted and unjustified. |
3: Findings and Conclusions:
3:1 The Relevant Law – Redundancy Payments Acts,1967 -2007 Disentitlement to redundancy payment for refusal to accept alternative employment. 15.—(1) An employee shall not be entitled to a redundancy payment if (a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately the termination of his contract. (c) the renewal or re-engagement would take effect on or before the date of the termination of his contract and (d) he has unreasonably refused the offer.
There is also the Requirement on Form RP9 for an Employer to give Counter Notice (Part C) “within seven days of service of the employee’s notice”. 3:2 Discussion /Conclusion In this case the key issues were firstly was the contract of Employment terminated? and secondly, if not, was there work available and on offer to the worker.? These issues were central to the evidence presented both written and in Oral Testimony. The Respondent submitted records of letters sent to the Complainant by Registered Post and gave Sworn Evidence of many attempts to contact the Complainant regarding a return to work. The Respondents also stated at the oral Hearing that they had immediate work if the Complainant was still available. The Complainant, in his evidence, gave Sworn evidence to the Contrary. He referred to two other employees, Mr J, a carpenter, and Mr A an electrician, who had been reemployed, long before him. He maintained that they had been brought back and he had been ignored. The Respondent stated that Mr J and Mr A were skilled employees who they had needed earlier than the Complainant who was a semi-skilled General Operative. The Respondent failure to reply to Part C of the RP9 was noted - this was explained, somewhat hesitatingly, as “Unfamiliarity” with Employment Procedures and the belief that they had already made numerous efforts to contact the Complainant to offer re employment. Faced with this complete conflict the Adjudication had to proceed on the balance of probabilities from Sworn evidence. A telling factor was the Registered Mail and the offer of employment at the Hearing. The Adjudication Officer queried this matter extensively. In conclusion and on the balance of the evidence the decision has to be in the employer’s favour. A claim for Redundancy has not been successfully made out. The Complaint fails.
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4: Decision:
CA: 00048330-001
Section 41 of the Workplace Relations Act 2015 & Section 39 of the Redundancy Payments Acts 1967 - 2014requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
The Complaint for Redundancy has not been made out – work was available and under Section 15 Redundancy is not available.
Dated: 3rd March 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Redundancy, Offer of Re Engagement. |