Case Number: ADJ-00025204. Workplace Relations Commission

• Docket Number: ADJ-00025204
• Hearing Date: 14 January 2021
• Date: 01 January 2021
• Court: Workplace Relations Commission
• Respondent: A Publican

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025204

Parties:

	Complainant	Respondent
Anonymised Parties	A Maintenance Worker	A Publican

Representatives Jacqui Synnott MSc MCIPD BA (HR) Kala Management Solutions limited

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031986-001	04/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00031986-002	04/11/2019

Date of Adjudication Hearing: 14/01/2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complaints are made by a maintenance worker who was employed by a publican for one day a week since 13th July 2004. The complaints refer to the alleged failure of the Respondent to provide the Complainant with his written terms and conditions of employment, and for an alleged unfair dismissal of the Complainant following a transfer of undertaking where the Respondent was the transferee. The complaints were denied by the Respondent.

Summary of Respondent’s Case:

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent submitted that in January 2019, under a TUPE, it was the transferee of the place of work of the Complainant. The Respondent maintained it had written to all employees in December 2018 informing them of the transfer, and as the Complainant was on sick leave at the time it did not meet with the Complainant until he returned from sick leave in January 2019. At this meeting the Respondent informed the Complainant that it had to complete electrical and plumbing works to renew the licence on the premises and as the Complainant did not hold qualifications the work would be carried out by a certified contractor/ tradesperson.

They met again where the Respondent submitted that the Complainant discussed there was no work and that he believed his role had become redundant. The Respondent confirmed it would explore the options of redundancy and get back to the Complainant. The Respondent contended that the Complainant did not raise any concerns regarding being made redundant and to the contrary advised he would be satisfied to get a redundancy payment. On that basis the Respondent paid the Complainant for the weeks up to 21st June 2019, and paid him any outstanding holiday pay, and processed a RP50 application for the redundancy which was to be paid out of the Social Fund. The Complainant did not raise a concern at the time nor raise a grievance about his redundancy. The Respondent therefore had no doubt the Complainant had accepted the redundancy.

The Respondent understood the redundancy payment was processed but it only became aware of the fact the Redundancy payment had not been made when it received the WRC complaint on 12th November 2019. The Respondent immediately followed the matter up with the Complainant who completed a new RP50 form. The Respondent met with the Complainant and his wife on three occasions between then and 18th December 2019, that the Complaint returned a signed RP50 form and the Respondent personally delivered this to the Department of Employment Affairs and Social Protection to ensure the form was progressed without delay.

On that basis the Respondent submitted that the Complainant accepted a redundancy in June 2019 and never raised a grievance or any concern regarding the redundancy situation either during his employment or when matters were being addressed in December 2019. On that basis the Respondent submitted the Complainant was not unfairly dismissed.

CA-00031986-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent submitted that it was a transferee of the business in January 2019 and it would have written to all employees during December 2018 before it took ownership of the business. It confirmed the business was acquired due to a TUPE. The Respondent maintained that the Complainant had a written contract at the time of the transfer and as it had not intended to change the Complainant’s duties or terms and conditions of employment it was not obliged to issue him with a new or revised contract. It submitted that it subsequently had discussions with the Complainant where it was agreed his job was to be made redundant, and the position was made redundant on 21st June 2019.

The Respondent therefore maintained it was not in breach of its obligations under the Act.

Summary of Complainant’s Case:

CA-00031986-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that when the change of ownership took place in January 2019 he was on sick leave and he eventually met with the owner in late January 2019. When he came to work that day, he was told that there was no work available for him. He was advised to come to work the following week which he did for a number of weeks, but there was still no work for him. The Complainant submitted that he spoke with a manager who advised him that he would probably be offered redundancy by the owner.

The Complainant maintained that he did not want redundancy and never asked for it, but he was told in June 2019 as he had no trade certification to do his maintenance work he could no longer be employed. Although he accepted that he was made redundant at the time he said he did not understand it and he never received any formal notification, or proper consultation about his redundancy. He also maintained that he did not receive a redundancy payment and had sent three emails to the Respondent seeking this, but his requests were not responded to. It was only after submitting his complaint to the WRC that the Complainant was then asked by the Respondent in December 2019 to sign a...