Complainant

Respondent

Parties

James  O'Connor

Danco Environmental Limited

Representatives

Citizens Information Centre

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00052753-001

12/09/2022

The Complainant commenced his employment with the Respondent on 18 October 2016. His employment was terminated on 31 March 2022. The Complainant was paid €180.90 gross per week (copies of sample payslips were exhibited at the hearing).

On 12 September 2022, the Complainant referred his complaint to the Director General of the WRC alleging that he did not receive his redundancy payment.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

I am satisfied that the Respondent was properly notified of the arrangements for the adjudication hearing. There has been no communication from, or on behalf of the Respondent prior or post-hearing explaining its non-attendance. 

The Complainant submits as follows.

The Complainant contends that he is entitled to statutory redundancy payment. He had worked for the Respondent for five and a half years, during which he was employed as general operative/driver.

The Complainant submits that the Respondent told him in March 2022 that "recently there was a transfer of undertakings between Danco Environmental Limited and Pure Oil Limited who are based in Roscrea, Co. Tipperary''. The Complainant, who is based in Cappamore, Co. Limerick, was told that his job was transferred to Pure Oil Limited but that he would have to travel a round trip of 172km per day. The Complainant contends that this was not a reasonable offer of employment and is seeking a redundancy payment from Danco Environmental Limited. The Complainant was never employed by Pure Oil Limited.

The Complainant submits that where an employee's decision to object to a transfer is due to a substantial change in working conditions to the detriment of the employee, TUPE specifically provides that the employment relationship is deemed to be terminated by the employer.

The Complainant further submits that, under TUPE regulations, an employee has a general right to information and consultation on issues that directly affect the employee. This right is set out in the Employees (Provision of lnformation and Consultation) Act 2005. The legislation requires employers to inform and consult employees on any decisions likely to lead to substantial changes in work organisation or contractual relations. There is a particular mention of mergers and acquisitions and  collective redundancies. This means that employers must consult with employees before major decisions are made, including transfer of business. Under the Regulations, employees or their union must be given the following details of the transfer: .

·       The reasons for the transfer

·       The date or proposed date of the transfer

·       An assessment of the legal, economic and social implications for the employees

An employee is to receive the above information in writing from an employer no later than 30 days before the transfer. The Complainant never received such information.

The Complainant submits that his employment with the Respondent was terminated on 1 April 2022 without notice and /or redundancy payment. His last day at work was 31 March 2022 and no work was given to him thereafter.

The Complainant submits that he was not offered fair procedures in the way the redundancy was carried out, no consultation took place, alternative roles were not considered, and no substantive effort was made to prevent the loss of his employment.

S.l. 146 of 2000 lndustrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (declaration) Order, 2000 although not legally binding ensures that the employee obtains natural justice and fair procedures.

The Complainant cited Desmond McGuire V Sleedagh Farms Limited UD 1320/2012 in support of his claim. This Employment Appeals Tribunal determination illustrates the key elements of fairness necessary when effecting a redundancy dismissal. These key elements are also present in this case. For example, there was a failure by the Respondent to adhere to any procedures, fair or otherwise; there was no warning-there was no discussion with the Complainant in advance of him losing his employment and no right to appeal this decision. There is a requirement that an employer act reasonably in such a situation. The procedures for dealing with such issues reflecting the varying circumstances of organisations, must comply with the general principles of natural justice and fair procedures. lt is imported into the employment relationship, by implication or explicitly. ln simple terms, the principle means that the employer must apply fair procedures and act reasonably at all times. The Complainant submits that natural justice procedures were not followed by the Respondent.

Under the redundancy payments scheme all eligible employees are entitled to a statutory lump sum payment on being made redundant. A redundancy situation arises in general where an employee's job no longer exists and he/she is not replaced.

The Complainant submits that under the Redundancy Payments Act 1967-2014, he is entitled to a redundancy lump sum payment based on his service from 18 October 2016 to 1 April 2022. This lump sum is calculated as two weeks' pay for each year of service plus one bonus week's pay which is €2250.00.

A search of Company records shows the status of Danco Environmental Limited as Normal.

It was submitted at the adjudication hearing that on 24 June 2022, Citizens Information Service wrote, on behalf of the Complainant, to the Respondent and copied the Respondent’s accountant inquiring about the Complainant’s status and attaching the RP77 form.

Summary of direct evidence of the Complainant

The Complainant confirmed that he commenced his employment on 18 October 2016. He said that he was told in March 2022 that he would be transferred to Pure Oil. He said that he would have to travel a round trip of 172km every day to work. He said that it was not reasonable offer of employment.

The Complainant said that his last day of work for the Respondent was 31 March 2022. He was not given any work after that date either by the Respondent or Pure Oil. The Complainant said that he sent RP77 form to the Respondent on 24 June 2022 but received no reply.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

The relevant law

The Redundancy Payments Act, 1967(as amended)  provides as follow.

7. General right to redundancy payment

(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 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 […], immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of [four] years ending on that date.

(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,

9. Dismissal by employer

(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

(c) the employee terminates the contract under which he is employed by the employer […] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

Section 9 (3) of the Redundancy Payment Acts 1967 (as amended) provides:

(a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—

(A) sets out the terms and conditions of the employee's contract of employment with the new employer,

(B) specifies that the employee's period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,

(C) contains particulars of the services mentioned in clause (B), and

(D) the employee notifies in writing the new employer that the employee accepts the statement required by this sub-paragraph.

(b) Where in accordance with this subsection an employee is re-engaged by the new employer, the service of that employee with the previous employer shall for the purposes of this Act be deemed to be service with the new employer.

It is regrettable that the Respondent in the within case chose not to attend the hearing and it was necessary to consider this matter without the Respondent’s  input.

On the uncontested evidence of the  Complainant, I find that he was, somewhat informally, informed in March 2022 that his employment would transfer to Pure Oil based in Roscrea, Co. Tipperary.

Regulation 4 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 very clearly sets out the obligations of the employer(s) - the transferor and transferee in this case:-

(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

 (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Regulation 5 (3) provides:-

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

The employer is defined under Regulation 1 as:-

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

The uncontested evidence before me is that the Complainant’s last day at work for the Respondent was 31 March 2022. There was no further engagement either by the Respondent or by the transferee. The Complainant was not given any work thereafter.

Citizens Information Service wrote to the Respondent, on behalf of the Complainant, on 24 June 2022 requesting clarification regarding the transfer of undertakings and of the Complainant’s position. The letter explained that the Complainant would be required to travel a round trip of 172km per day, if transferred. It was contented that this was not a reasonable offer of employment. The Complainant sought redundancy and the RP77 form was enclosed. The Complainant received no response to this communication.

For the avoidance of doubt, there was no complaint under the TUPE regulations before me.

On the basis there was no re-engagement of the Complainant on the same terms and conditions of employment he enjoyed with the Respondent, I find he was dismissed by way of redundancy under Section 9 (1) of the Redundancy Payments Act 1967 (as amended).The following criteria apply:

Date of commencement: 18 October 2016 Date of termination: 31 March 2022 Gross weekly remuneration: €180.90

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

I allow the Complainant’s appeal.

I decide that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, in accordance with the following criteria:

Date of commencement: 18 October 2016 Date of termination: 31 March 2022 Gross weekly remuneration: €180.90

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy- TUPE- non-attendance