Case Number: ADJ-00001200. Workplace Relations Commission

• Docket Number: ADJ-00001200
• Date: 06 May 2015
• Court: Workplace Relations Commission
• Parties: A Worker v An Employer

ADJUDICATION OFFICER DECISION Adjudication Decision Reference: ADJ-00001200 Complaint for Resolution:

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-00001586-001	20/12/2015

Date of Adjudication Hearing: 12/10/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, and Section 39 of the Redundancy Payments Act, 1967 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

The Respondent was requested to confirm the legal name of the Employer. This was confirmed as named at Hearings on 11^th October 2016. However at further Hearings on 12^th October 2016 one of the Complainants present presented a letter dated 6^th May 2015 from a different named respondent. Following further discussion with the Respondent she confirmed the correct name of the Respondents is as stated above under Parties/Respondent.

Background

The Complainant was employed from 21^st September 2005 until the employment terminated on 31^st August 2015. The Complainant was paid €346.00 gross per week and she worked 40 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment. The Complainant had transferred from another named Company under TUPE in April 2011

The Complainant referred a complaint to the Workplace Relations Commission on 20^th December 2015 alleging she had not been paid her Redundancy entitlements on termination of her employment.

Summary of Complainant’s Position.

The Complainant was employment as a General Operative by the Respondent Company and assigned to work with a Client Company (Named) at their Premises located in Airport Industrial Estate since 4^th April 2011. She had transferred to the Respondent under TUPE.

In August 2015 she was informed that she was no longer to be assigned to the Client Company as this Client had entered into a new Contract with another named Company who would be relocating the operations of the Client Company to a location in Naas, Co Kildare.

She was informed by email dated 7^th August 2015 – copy provided – that if she was to transfer under TUPE to a named Transferee and relocate to Naas, Co Kildare that she would have to sign a new terms and conditions in line with their contracts of employment – that she would have continuous service.

The Complainant stated that she lived in Dublin City and was not in a position to transfer and relocate to Naas, Co Kildare.

The Complainant was issued with a letter dated 14^th September 2015 which confirmed as follows: I wish to confirm (named) has finished assignment with our client, as of the end of August 2015 and we do not have any other work available to her right now.

The Complainant is seeking her Redundancy entitlements under the Act.

Summary of Respondent’s Position.

The Respondent acts as a Recruitment Business, it supplies work seekers to client hirers for temporary assignments. She was engaged on a Mobile Worker Agreement with no permanent place of work. Details of the Contract of Employment were presented to the Hearing.

The Complainant was assigned to work with a named Client at Air Business Park Dublin 9 and remained there until the Respondent’s relationship with the named Client was dissolved on 31^st August 2015. Operations at the location have ceased.

The Complainant was informed by letter dated 6^th May 2015 that her assignment would cease on 31^st August 2015. She was informed that the Respondent would look for other suitable assignments.

In August 2015 the Complainant, along with some 50 other employees who had been on assignment to the named Client Company were invited to register with another named employment agency that would now operate at a different location in Naas, Co Kildare.

The Complainant signed a collective complaint to the Respondent dated 27^th October 2015 stating their employment with the Respondent had ended and the Complainant’s were seeking redundancy pay.

The Respondent wrote to the Complainant on 2^nd November 2015 stating her complaint would be investigated. The Respondent issued a further letter on 6^th November 2015 informing the Complainant she was still employed by the Respondent and that the ending of her assignment did not constitute the ending of the employment relationship.

The Complainant has not been made redundant and therefore is not entitled to payment of Redundancy.

The Respondent confirmed at the Hearing that the Complainant had not been offered any further work with the Respondent since August 2015.

The Respondent stated that if the Complainant was entitled to payment of Redundancy then they had calculated €3397.72. However I note that the start date is given as 4/4/2011 which does not take account that she transferred to the Respondent under TUPE in 2011 and does not take account of her previous service from 21^st September 2005.

Findings

The Respondent issued a letter to all its employees, including the Complainant, dated 6^th May 2015 which confirmed that the Complainant’s assignment with a named client would terminate on 31^st August 2015. The letter goes on to state as follows: “Our plan once your assignment has finished will be to bring you all in for a refresher manual handling course and reregistration….After this has occurred we will then begin the process of looking for other jobs for you all”

The Respondent confirmed at the Hearing that the Complainant had not been invited in for a refresher course nor has she been offered any alternative employment since August 2015.

Section 7 of the Redundancy Payments Act, 1967 provides as follows:

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...