Complainant

Respondent

Parties

Vidmantas  Masaitis

Mitie

Representatives

 N/A

Emily Maverley, IBEC

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-00069629-001

28/02/2025

The Complainant has been employed by the Respondent as a duty manager since 12th May 2017. He has brought this complaint as he believes that he is entitled to a redundancy payment under the Redundancy Payments Act, 1967.

Both parties provided written submissions in advance of the hearing. The Respondent is relying on a preliminary matter, namely that the fact of dismissal is in dispute and therefore the Complainant’s claim is not viable. This is addressed further below.

The Complainant was employed as a Duty Manager with the Respondent in May 2017. He claims that the Respondent has unlawfully refused to process his statutory redundancy entitlement following significant operational changes during his prolonged absence on certified sick leave. The Complainant has been on sick leave since 1st December, 2023.

The Complainant says that his role was effectively eliminated and absorbed into company restructuring, yet the Respondent continues to deny redundancy and instead threatens termination for incapability.

According to the Complainant, after he went on leave, his duties were reassigned to a Supervisor who was later promoted to Duty Manager, which is his exact position. Subsequently, a Cleaner was promoted to fill the Supervisor role, confirming a structural change that meets the legal definition of redundancy. Despite repeated written requests and a formal 48-hour notice, the Respondent refused to engage on redundancy, insisting his role “remains available” and attempting to schedule a capability meeting instead. The Complainant argues that this meeting is a deliberate attempt to bypass redundancy obligations.

The Complainant is seeking full statutory redundancy for his eight years of service and additional compensation for the Respondent’s failure to follow redundancy procedures.

The Complainant provided supporting evidence which he says confirms role reassignment and company records showing restructuring.

The Respondent refutes the claim brought by the Complainant under section 39 of the Redundancy Payments Act 1967. It is submitted that the complaint is fundamentally flawed because no dismissal has occurred, which the Respondent says is a pre-requisite in order to succeed in a complaint of this nature.

The Respondent emphasised that the Complainant remains an employee on long-term certified sick leave and that his employment contract has not been terminated by either party. Consequently, it argued that the Workplace Relations Commission lacks jurisdiction to adjudicate on this claim because a redundancy payment only arises upon dismissal or lay-off.

The Respondent cited sections 7 and 9 of the Redundancy Payments Act 1967, which require termination of employment for any redundancy entitlement. The Respondent maintained that the Complainant himself confirmed in correspondence to the WRC on 5th March 2025 that he remains employed by the Respondent, albeit on sick leave, when he stated:

“I am still currently employed by Mitie, but I have been on long-term certified sick leave since 1st December 2023”.

The Respondent outlined, by way of background, that the Complainant transferred to the Respondent in November 2023 under a transfer of undertakings and worked briefly before commencing sick leave. During his absence, the Respondent arranged two independent occupational health assessments (April 2024 and January 2025), both concluding that he was medically unfit for work but fit to engage with management. Following these reports, the Respondent invited the Complainant to a capability review meeting on 13th February 2025 to discuss his ongoing absence and possible future employment options. The Respondent stressed that termination was only noted as a potential outcome, not a predetermined decision.

When the Complainant raised redundancy claims in February 2025, the Respondent repeatedly clarified that his role remains available and that temporary redistribution of duties during his absence does not constitute redundancy. The Respondent stated that there has been no structural change eliminating the need for his position, and therefore no redundancy situation exists. Despite offering the option to raise a formal grievance, the Complainant declined and instead escalated the matter to the WRC on 28th February 2025.

The Respondent’s position is that the claim is without merit because the Complainant has never been dismissed from his employment, or even placed at risk of redundancy. His role remains available to him and, when certified fit for work, he can return to his existing position.

The Respondent requests that the claim is dismissed in its entirety.

The Complainant’s case is that his role has been made redundant and he should therefore be entitled to a redundancy payment. The Respondent completely refutes that the Complainant’s role is redundant and is very clear that his position is available for him to return to.

As the complaint has been submitted under the Redundancy Payments Act, 1967 (as amended) (the Act), the question for me is whether or not the Complainant is entitled to a redundancy payment under the Act.

Section 2 of the Act contains the following definition:

“date of dismissal”, in relation to an employee, means—

(a) where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and

(c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires,

and cognate phrases shall be construed accordingly;

Section 7 of the Act details an employee’s general right to a redundancy payment. It states:

(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, 1952 to 1966, 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 F18[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, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…

The operative statement in section 7(1) above is that an employee “if he is dismissed by his employer by reason of redundancy” [emphasis added] shall be entitled to the payment of moneys known as a redundancy payment.

Notwithstanding the Complainant’s view that his role has been reassigned, the Respondent has confirmed that his role remains available. I find that the Complainant has not been dismissed by his employer.

As the Complainant has not been dismissed by his employer by reason of redundancy, or at all, he is therefore unable to apply for a payment under the Act. He does not meet the criteria that his employment has been terminated in the first instance.

I find that this complaint is misconceived by the Complainant and it is therefore not well founded.

For the reasons set out above, I find that this complaint is not well founded.

Redundancy - dismissal