Complainant

Respondent

Parties

Alexey  Demenschin

Synergy Security Solutions ltd

 (amended on consent)

Representatives

  Appeared In Person

Frank Walsh , Human Resources.

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-00065879-001

10/09/2024

On 10 September 2024, the Complainant, a Security Worker and Lay Litigant submitted a claim seeking a lump sum payment in Redundancy. Due to a lack of detail inserted on the complaint form, the Complainant was requested to populate some key details to assist the WRC in complaint management.

On 29 October 2024, the Respondent a Security Company was notified of the claim.

On 14 November 2024, both Parties were invited to a hearing in the case scheduled for 20 January 2025 by registered post.

On 3 January 2025, the Respondent submitted their written submission prepared by their Human Resource Manager.

This was shared with the complainant.

As the complainant had not responded to the invitation for him to provide his own written submission, I wrote to him on 13 January 2025 seeking.

 “Your written outline of your claim please alongside any documents you wish to rely on. “

On the same day, the complainant responded, indicating that he did not have any documents, only emails, which he was ready to exhibit at hearing. He was invited to comply with the WRC rule to send in all document’s prehearing.

The Complainant, Mr.  Demenschin  took the oath to accompany his evidence.

Mr. Frank Walsh and Mr. Eoin Walsh for the Respondent took the oath to accompany their evidence. Mr. Charles Hodnett took the affirmation.

At the conclusion of the hearing, I requested the Complainant provide me with PRSI records. I also requested the Respondent provide me with the record of 27 July 2024.

I did receive the respondent document, but the complainant sent in revenue records. He was reminded by the Post Registration Unit that PRSI records were requested, but did not comply.

The Complainant outlined his claim for a lump sum redundancy payment.

He visibly struggled to recall his start and end dates in employment but confirmed that he had commenced security work in Dublin 12 years ago and had worked across a number of locations prior to being made redundant in 2008.

He joined the Respondent some three years previous and worked across a university site.

The Complainant framed his written complaint on a historical pressure point of understaffing followed by a period where he was left without work for a 5-week period, (28 June to 12 August 2024) from where he made application for redundancy, which was refused. He sought payment for the 5 weeks, but no one responded. He felt disrespected.

In direct evidence, the complainant told the hearing that he had undertaken security work over a 3-year period, without incident.

In June 2024, he recalled having an argument with a Reception worker in Student Accommodation, which resulted in him hanging up his phone. He was not happy to cover reception area.

Some 10 days later, Mr Hodnett called him to relocate to a new site. As the request did not comply with the 3-day rule on change, he refused. The Complainant submitted that he had received an assurance that he would be provided with a list of alternative sites

He later proceeded on sick leave and was last paid on 20 June 2024.

Relying on a friend’s experience, he considered that he was eligible for redundancy and made application in writing to a number of the respondent management team on 28 August 2024. He said his application had been refused as he had declined to go to work. He added that he had been “trying to stay away from work”.

The Complainant confirmed that he had not raised a grievance under the Regulation order and had not made a claim for illness benefit or job seekers benefit.

The Complainant lodged his claim with the WRC on 10 September 2024

He received two weeks sick pay in October 2024 and was placed back on pay roll on 10 December 2024

He sought an explanation by email and was informed that he would receive a list of sites but heard nothing from the respondent.

The Complainant confirmed that he was disappointed that he was forced to come to WRC. He acknowledged that he had received payment for the contested 5 weeks. when he accepted 4 weeks pay and payment for public holidays.

He concluded that he had ceased being a Union member when he transitioned to the respondent business.

In cross examination, Mr Walsh asked the complainant what he meant when he said that “he was trying to stay away from work? “

He responded that he was being pushed around by the company and while he had not been fired, he had been threatened by dismissal twice. He confirmed that he had not submitted a grievance or appeal of the disciplinary sanction. He had not resigned.

He accepted that he had not been suspended. He had not received notification of cessation of pay.

The complainant acknowledged that he had not been placed on temporary layoff. However, he confirmed that there “had been a disagreement between us “. He held onto the 3-day rule surrounding change of roster.

In conclusion, the complainant repeated his claim for redundancy based on his 5-week absence. He contended that he was within his rights to refuse the alternative postings.

He stated that he was unhappy at how he had been treated. He accepted that he ahd accepted the respondents offer which addressed the 5 weeks absence. He alleged that the respondent had left out emails.

The Complainant accepted that he had not been placed on lay off or dismissed by the respondent.

He accepted that when he had previously been made redundant in 2008, he had claimed job seekers. He was unable to explain why he had not claimed a weekly job seeker payment for the contested 5-week period.

He concluded by restating that he had not been treated properly by the respondent.

It was the Respondent case that the complainant had joined the respondent security business on 30 April 2021, having previously been employed by G4 S company. An employment agreement was exhibited between the latter company and the complainant.

This was accompanied by a signed declaration of transfer of employment through TUPE from G4S to the respondent from 30 April 2021.

It was common case that the complainant had been working at a University Accommodation Centre up until 10 June 2024 until being removed at the client’s request.

A Disciplinary process followed, and the complainant was “officially removed from the site “.

He was offered alternatives:

11 and 12 June 2024 preparatory training, pending formal site allocation, which he refused.

Further offers of relocation followed, all of which were vetoed by the complainant.

On 12 August 2024, the Complainant applied for redundancy.

“…Now I’m looking that we going to start do the paperwork and synergy pay me redundancy as you do not provide me with work more that 5 weeks no one contact me and as I said that I understand that you don’t need my service ….”

He repeated the application on 26 August 2024.

The Respondent exhibited the email of 27 August 2024, in response. This detailed the offers of alternative postings.

The Complainant once again sought redundancy.

The Respondent engaged further with the complainant and while he agreed to take a new posting in Blarney, he was holding out for paid resolution for his period of absence, which had extended to a 10 week claim @ €650 pw.

The Respondent outlined that the complainant had resolved matters with the respondent when he accepted 4 weeks pay and payment for public holidays in November 2024. These monies were paid in December pay date.

He has since returned to a full roster at the respondent business.

The Respondent expressed reservations about the case progressing on foot of this mutually agreed position.

The Respondent queried this with the complainant on 30 December 2024 but failed to resolve the instant case.

The Respondent contended that as the complainant is not entitled to a lump sum payment in redundancy. He had not been placed on lay off / short time so as to permit him to trigger a claim for redundancy.

The facts of the case emerged from the imposition of a disciplinary sanction, which the complainant had not appealed.

The Respondent had been compelled to remove the complainant from site at the behest of the client, but the objective had been to “keep him working “

Frank Walsh, Human Resource Manager.

Mr Walsh gave evidence on the circumstances of the client complaint regarding the complainant. The objective had been to keep the complainant working as he had not been suspended.

He refused to cooperate with a plan to redeploy as he contended that he had not been provided with 3 days’ notice.

The Disciplinary process concluded that the complainant had breached company policy and his sanction was removal from the University site, which he did not appeal.

He submitted that every effort was made to resolve the impasse of the complainant’s persistent refusal to return to work. The issue was resolved on the complainant s agreement to accept 4 weeks pay and payment of public holidays.

This negated his claim for redundancy.

During cross examination, the complainant posed the question as to why he had not been notified of a resolution before the 10 September 2024, as he had agreed to go back on 36 hrs.

Mr Walsh responded that there was no change in the agreement, and he confirmed that he was permitted to remove him from his university base from June 10, 2024.

Mr Eoin Walsh, Senior Operations Manager

Mr Walsh confirmed that the client had requested that the complainant be removed from site. The objective was for him to maintain his earnings and he was requested to relocate across the river, which he refused. On 28 June he spoke to the complainant once more on an offer of relocation to the Airport, which he refused.

Mr Walsh was on sick leave during July 2024.

He concluded that all offers up to mid-August had been refused and rejected that redundancy had occurring. The plan was always to bring the complainant through continuous employment.

During cross examination by the complainant, Mr Walsh reaffirmed the efforts made to make contact with the complainant by phone. He confirmed the airport was mentioned on 28 August correspondence. It was the complainant who refused work, when work was available.

Mr Charles Hodnett, Operation Lead

Mr Hodnett confirmed that he had told the complainant that a complaint had been raised against him in June 2024. He had vetoed the proposed move to another base and that “was the end of the conversation.

The Respondent relied on Browne and Di Simo RPD 1914, Labour Court, where the Court applied the jurisprudence of the UK EAT in Cambridge and District Co-operative Society ltd v Ruse [1993] IRLR 156. The suitability of employment being objective, whereas the reasonableness of the employee’s refusal depends on factors personal to him and subjective.

The Respondent also cited Last Bus and Raul Bhima ADJ 33581, as support for their position that the circumstances relied on by the complainant amounted to redundancy.

The Respondent viewed the complainant as inflexible in his approach to the persistent offers to return him to work. The statement of his difficulties was off his own making.

The Complainant had not been dismissed and was not entitled to a lump sum payment.

Last Bus ltd v Mr Raul Bhima, RPD 2311, appeal of ADJ  33581

In light of the above, the Court finds that the Complainant terminated his employment with the Respondent when he commenced working for his new employer on the 18 May 2021 and the reason for so doing so was to take up employment with his new employer at a time of his own choosing. Notwithstanding the above, the Court is of the view that it was not reasonable for the Complainant to terminate his employment relationship when he did and then seek an entitlement to a redundancy payment in circumstances where he failed to meaningfully engage with the Respondent about the alternative employment opportunities proposed. It is clear that the Complainant failed to engage with the Respondent about the proposed changes to his contract of employment and instead prematurely submitted a complaint under the Act to the Workplace Relations Commission seeking a redundancy payment. An entitlement to a redundancy payment cannot be triggered if there is no dismissal within the meaning of section 9 of the Act. As the Court has found that there was no dismissal, it finds that there is no entitlement to a redundancy payment. In all of the circumstances of this case, the Court finds that the Complainant is not entitled a redundancy payment from the Respondent. The decision of the Adjudication Officer is varied accordingly.

In the instant case, the Respondent did not affect a redundancy in the complainant’s case. At the root of the case is a disagreement regarding an incident at work, which was investigated, but had a defined lack of clarity on a written outcome.

During the period June to November 2024, the Complainant was absent through a combination of his own  design, illness and annual leave. He resumed work with the same employer in December 2024, without cessation of employment. He continues to work there. He received payment for part of his period of absence .

There was no redundancy. Therefore, the question of a lump sum payment in redundancy does not arise on this occasion.

The claim is not well founded.

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.

There was no redundancy. Therefore, the question of a lump sum payment in redundancy does not arise on this occasion as provided in Section 7(1) of the Act.

The claim is not well founded.

Claim for Redundancy