Case Number: ADJ-00018490. Workplace Relations Commission.

• Docket Number: ADJ-00018490
• Hearing Date: 10 June 2019
• Date: 01 October 2019
• Court: Workplace Relations Commission
• Parties: Merchandiser Vs Marketing Company

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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.

Background:

The Complainant is a merchandiser and the Respondent is a marketing company. The Complainant commenced working for a predecessor of the Respondent on the 1st of September 1983. Since 2008 the complainant worked in or around 30 hours per week. She had worked more hours but had reduced them at her own request. She never received a contract of employment. Her case was that she received notice that her hours were being reduced permanently in June and July 2018. She resigned from her employment in July 2018. She did not receive a redundancy payment. The Complainant argued that she was dismissed as envisaged under Section 9(1)(c) of the Redundancy Payments Acts due to the Respondent’s conduct. The Respondents disputed this and argued they were not given an opportunity to replace the hours that were “lost” and essentially submitted that the Complainant was not dismissed. In addition, the Respondent argued that the Complainants work hours were not reduced to less one half of her normal weekly hours and that did not qualify for her for a redundancy payment. The Complainant disputed that this was a lay-off situation as set out in Section 11(2) of the Redundancy Payments Acts.

Summary of Complainant’s Case:

The Complainant gave evidence that her main duties involved merchandising products in various shops for customers of the Respondent. The two relevant customers were a dairy company and confectionary/snack company. For these customers, the Complainant was responsible for merchandising two products for each customer. The Complainant’s weekly hours were loosely divided up between - The Dairy company: 17 hours spent on product A and 8 hours spent on product B - For the Confectionary company: 5 hours spent on product C and 1.5 hours on product D The Complainant received a letter dated 4th May 2018 from her Accounts manager. It notified her that from the 8th of June 2018 she would no longer be merchandising Produce C which was 5 hours of her weekly work. The explanation given was that the store in which she was working was moving to a centralised purchasing and merchandising model and no longer engaged the Respondent for this product. The Respondent would no longer have that work available for the Complainant to carry out. The Complainant received a further letter dated 7th June 2018 from a different Accounts manager with the Respondent. It informed the Complainant that from the 22nd of July 2018 because of the centralised system being introduced by the stores, the Respondent would be no longer providing food merchandising and ordering for Product B. This meant that the Complainant lost a further 8 hours of her working week. The effect of these two letters was that from the 22nd of July 2018 the Respondent would no longer have work for the Complainant for Products B and C. This resulted in a reduction in 13 hours (8+5 hours) or 41% of the work that she was engaged for the Respondent. Her pay was to be reduced by €150.00 per week. The Complainant submitted that there was no prospect that these hours would be recovered through other work provided by the Respondent. The Respondent’s letter of the 7th June 2018 stated “[Respondent] will endeavour to offer suitable alternative or short-term work where such work may exist, however this is not always possible.” The Complainant approached her supervisor enquiring about redundancy but was advised that no one in her area was being offered redundancy. The Complainant resigned from her employment on the 8th of July 2018. She submitted that she was entitled to her redundancy by reason of the employer’s conduct. She relied on Section 9 (1)(c) of the Redundancy Payments Acts 1967- Dismissal by employer. She referred to the EAT decision in McCann –v- Vantage Wholesale Limited (RP 253/2001). The Complainant submitted that the change to her terms and conditions was a repudiation of her contract of employment by the Respondent. The Respondent had made it clear that it was not going to be contractually bound by the existing contract of employment. She also relied on the UK EAT decision in Packman –v- Fauchon [2012] ICR 1362 where a reduction in working hours was accepted to amount to a redundancy scenario. The Complainant submitted that the reduction in her working hours was dramatic and had a hugely negative effect on her earnings. The Respondent was aware that the introduction of the centralised distribution / marketing system was planned for at least 3 years. The Complainant submitted that it was a continual topic of conversation between her and her line manager. She had raised the question during these conversations as to her entitlement to a redundancy payment. She had assumed she was entitled to it.

Summary of Respondent’s Case:

The Respondent disputed that the reduction in working hours had such a dramatic and negative impact on the Complainant. Its case was that the...