Complainant

Respondent

Parties

Maria  Kunka

Mitchel House Restaurant Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066724-001

16/10/2024

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

CA-00066724-002

16/10/2024

The Complainant worked for the Respondent from 4th September 2015 until 23rd June 2024.

The Complainant worked for the Respondent restaurant as a waitress. She has not received written terms and conditions of employment.

She was given three day’s notice of closure of the restaurant and no proper notice. She was told it was being closed for renovations for 4-5 months. She was offered a position at the Granary Bar & Kitchen as a waitress. She did not want to transfer to the other restaurant as it is very big. She agreed to a trial. She was told the Mitchel House restaurant would re-open, but the owners lied. The Granary Bar & Kitchen is too busy for her due to her age. After two months, she injured her arm and was on sick-leave for six months. The employer said he would get her help on Friday and Saturday, but it did not happen. Her doctor has recommended she does not take up this work again as it will result in further problems with her arm.

The Respondent operated the restaurant for seventeen years and it closed on 23rd June 2024. The owners wanted to renovate it and come up with a new concept as it had run its course. A few months after it closed, the Respondent was approached by another restaurant who were looking for a bigger premises, and they decided to lease the premises on a short-term lease as the environment is uncertain for restaurants.

The Respondent submitted evidence of works prepared by Architects to be carried out on the premises.

There was no dismissal or redundancy of the Complainant, as she was offered the same role in another restaurant. Her employment was transferred to the new company. The Complainant worked in the Granary Kitchen & Bar from July until 6th September 2024.

I heard and considered the submissions and evidence of the parties at the hearing.

The Complainant worked for the Respondent for almost ten years as a waitress. Following review of the Complainant’s payslips, the title of the Respondent is incorrect. Pursuant to S39 of the Organisation of Working Time Act, I hereby amend the title of the Respondent to Mitchel House Restaurant Limited.

CA-00066724-001 & CA-00066724-002   

The Complainant does not have written terms and conditions of employment. She was given three day’s notice of the closure of the restaurant which she worked in for ten years as a waitress.

The Complainant gave evidence that she was offered another position as a waitress in a restaurant nearby, on the same terms when the restaurant closed. The Complainant was reluctant to take the position as the other restaurant was much bigger and very busy. She had concerns as she is older.

She agreed to work in the other restaurant on a trial basis, as she was told the Mitchel House Restaurant would re-open in a few months. She said the plates were very heavy. She asked for help at the weekends, which was not forthcoming. She went on sick-leave after two months due to severe “tennis elbow” secondary to lifting and manual work. She was told by her doctor not to return to this work.  She feels she was duped into taking up the position which is not suitable for her.

The Respondent disputes that the Complainant was duped. They submitted evidence of their plans for redevelopment of the restaurant. However, following closure of the restaurant they gave evidence they subsequently decided to lease the premises to another operator. They dispute the job the Complainant took up with an associated company is not a suitable alternative, say the terms and conditions are the same, and the restaurant is located nearby.

S7 (2) of the Redundancy Payments Act 1967-2021 provides:

“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.....”

S 5 (2) of the Redundancy Payments Act 1967-2021 provides:

An employee shall not be entitled to a redundancy payment if—

(a) his employer has made to him in writing an offer to renew the 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 differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

The business of the Respondent closed which falls within S7 (2) (a) of the Redundancy Payments Acts 1967-2021, accordingly I find the Complainant was dismissed due to redundancy. Pursuant to S6 of the Unfair Dismissals Act 1977, redundancy is a fair ground for dismissal.

The question then arises under S5 of the Act was the waitressing job the Complainant took up on a trial basis a suitable alternative role?

In Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 the UK Tribunal considered similar wording and found the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. In a recent decision, the Labour Court relied on the UK case of Hudson v George Harrison Ltd EAT 0571/02 in Cosy Tots & Co. Ltd v Bernadette Conn [2021] RPD219. It found that determining the reasonableness of the offer of suitable alternative employment “involves taking into account the personal circumstances of the employee”.

It is not disputed that the financial terms of the role in the Granary Kitchen and Bar are the objectively reasonable. However, the Granary Kitchen and Bar is a bigger restaurant. The Complainant carried out a trial of the role but found the role unsuitable as it was too busy and demanding. She could not continue in the role due to the level of work involved. I accept the Complainant’s concerns regarding her age and suitability of the role, and find the role does not amount to a suitable alternative.

CA-00066724-001

The complaint is not well founded. The Complainant was fairly dismissal due to redundancy.

CA-00066724-002

The complaint is well founded. I direct payment of redundancy to the Complainant pursuant to the Redundancy Payments Act 1967-2012 by the Respondent based on her employment from 4th September 2015 until 23rd June 2024 on a wage of 460 euro gross per week.

CA-00066724-001

The complaint is not well founded.

CA-00066724-002

The complaint is well founded. I direct payment of redundancy to the Complainant pursuant to the Redundancy Payments Act 1967-2012 by the Respondent based on her employment from 4th September 2015 until 23rd June 2024 on a weekly wage of 460 euro gross.