ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055502
Parties:
| Complainant | Respondent |
Parties | Joseph Ward | Vector Workplace and Facility Management Limited trading as Aramark Workplace Solutions |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | Derek Beegan Connect Trade Union | Aleksandra Tiilikainen IBEC |
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-00067069-001 | 31/10/2024 |
Date of Adjudication Hearing: 21/05/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment. The Complainant herein qualifies.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.
In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 31st of October 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
|
Summary of Complainant’s Case:
The Complainant was represented by a member of his Union. The Complainant gave evidence on his own behalf and on Affirmation. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant brought a number of witnesses to provide evidence in support of his/her case. I was provided with a comprehensive submission dated the 19th of May 2025. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form. This complaint was set out as follows: I have been working as a mobile facilities technician for 16 years on the central contract team, I was never contracted on a single contract. My role involved from time to time assisting those contracts with annual leave or site cover. All employees on these contracts are signed up to those contracts. my role has always been working with the central time. In October 2022 I was removed from a job and informed I was going over to Tesco Contract on a temporary basis.. From that date throughout I repeatedly requested to return to my contract role, as would have occurred in the past. The company were informed in April, 2024 that they lost the Tesco and I received a letter stating that I had to TUPE to another company who won the contract. I again advised the employer that I wished to continue with the role I held with Aramark as would have occurred in the past, previous lost contracts did not affect my employment or my role. My employer (Aramark) advised that if I did not proceed with the TUPE that my employment would cease that is contrary to my employment. In light of the above I am now seeking redress in line with the Redundancy Act, The situation above has been significantly impacted by the withholding of information and correspondence by the company which has been formerly referred to the DATA Commissioners and the WRC under S.7 Terms of Employment (Infromation Act) 994 ADJ-00052066 CA-00063893. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Complainant alleges that he is entitled to Redundancy in circumstances where his Employer of sixteen years has no work for him on the return from a period of secondment. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
|
Summary of Respondent’s Case:
The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with written submissions dated the 19th of May 2025. I have additionally heard from a witness for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent rejects that a redundancy situation has arisen and asserts that the Complainant was subject to a Transfer of Undertaking which he voluntarily withdrew from. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The representatives each in turn opened up their submission prepared for my benefit. I additionally heard from the Complainant and from the Respondent HR Business Partner. There is a significant backstory herein and it is clear that the relationship between the Complainant and his Employer had been strained for some time. I have tried to set aside those extraneous issues which have no relevance. In short, I am limiting myself to a consideration of the existence or the non-existence of a Redundancy situation relating to the Complainant. Mr. Ward was employed as a mobile Facilities Technician as of the 28TH of April 2008 with Vector Facility Management Limited trading as Aramark Workplace Solutions. The Employer provides Facility Management Services which involves providing a comprehensive range of Facilities Management services that optimise the efficiency, functionality, and sustainability of client facilities across Ireland. From the Complainant’s perspective his supporting role included the provision of carpentry, painting, plumbing, plastering and other trades as required. I am satisfied that the Complainant was expected to demonstrate mobility and flexibility in this dynamic workplace. This is demonstrated by the fact that in the 2008 Contract of Employment it is stated that as a Mobile Facilities Technician that the normal place of work will be “Ireland”. The role was a supporting one across all client contracts for the provision of cover for fixed contract employees of the various trades when those employees were sick and on leave. To my mind the Complainant was effectively seconded out to clients as and when his services were required. I note that Respondent representative did not particularly care for this description, but I think it appropriate in light of the definition:
The Complainant gave comprehensive evidence as to how his years working with the Respondent unfolded. Sometimes he would be with a client for short duration and sometimes for a long duration. He described working for Meteor for three years solid and with Oberstown for two years solid. He returned to the Respondent for re-deployment after each of these tranches of time. The Complainant said that very often the Respondent might lose a client and often might gain a client. I understand that relations between the parties might have soured in and around September or October of 2022. At that time the Complainant was removed from Oberstown and was placed with Tesco Ireland. The Complainant took issue with being described as a general operative when working with this client as he was of a technical grade. The Complainant had previously been assigned to the Tesco facility and had not particularly cared for the placement. That previous redeployment (in 2021) had only lasted a few weeks and the Complainant was subsequently re-assigned to another client elsewhere. He was not particularly happy to be returned to Tesco in October of 2022 and said as much to his Line Management team. To his surprise the Complainant was advised in and around the May of 2024 that the role that he was filling in Tesco was being transferred to a third party in circumstances where Vector Workplace and Facility Management Limited had lost the Tesco Contract to a third party. The most surprising part of this information was the fact that the Complainant himself was expected to transfer – and was so advised by his Employer. I have had no evidence presented to me by the Respondent which tends to suggest that there had been a lawful change in the understanding between the parties of the nature of the Contract of Employment under which the Complainant worked. As I understand it, when a secondment comes to an end the Complainant presents with the Employer for a re-deployment. That had been the cycle for the previous sixteen years. It is hard not to be tempted to think, as the Complainant urged me to do, that the refusal to allow the Complainant return to the workplace in the usual way was an underhanded way of getting rid of an Employee perceived (by the Respondent) to be difficult. I do not need to go there as this is not an Unfair Dismissal claim. The Complainant was therefore not redeployed by his Employer as he might have expected to be. I have to draw the conclusion, where no evidence to the contrary has been provided, that the Employer herein had no more work for the Complainant and that his role after sixteen years had been made Redundant. I am consequently satisfied that the Complainant’s position was made redundant and the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 26th of April 2008 The employment ended: 31st of May 2024 Gross weekly wage : €740.00 The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00067069-001 - I am satisfied that the Complainant’s position was made redundant and the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 26th of April 2008 The employment ended: 31st of May 2024 Gross weekly wage : €740.00
|
Dated: 15th of July 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|