Case Number: ADJ-00026100. Workplace Relations Commission

• Docket Number: ADJ-00026100
• Date: 29 May 2020
• Court: Workplace Relations Commission

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.

Summary of Complainant’s Case:

The Complainant is seeking payment of his statutory redundancy of €29,400 on the basis of €600 per week plus a bonus week and that he worked for 24 years in total. The Complainant said that he has served with the previous owner and following a transfer of undertaking was working with the Respondent as a driver for some 24 years at the point of his redundancy. The Complainant said that although his employment contract states that his place of employment is Ireland, he at all times collected his truck close to his home and then drove to where he was required to work. He was on the same site for 23 years and returned home that evening. However, following as incident at work, the only offer of work from the Respondent is that he would first have to drive to Dublin to collect his truck, and to return the truck back to Dublin each evening after work before he then returns home. The Complainant maintains that amounts to a round trip of 380 miles each day, an additional 15.5 hours driving time per week just to get to and from work and an additional cost to him of €180/€200 per week. This he claims is an unreasonable and unfair alternative employment offer. The Complainant said that under the Redundancy Payment Acts, 1967-2014 he is entitled to a redundancy payment because he was placed on lay-off for a period of four or more consecutive weeks and/or for a period of six weeks or more in a period of thirteen consecutive weeks. He claims that his situation falls into that bracket. The Complainant said that he submitted his RP9 -notice of seeking to assert his right to redundancy-, on 19 November 2019 in respect of lay-off within the meaning of Section 12(1)(b) of the Acts. The Complainant said that the Respondent had not presented him with a reasonable alternative for work, as he was now expected to travel an additional 380 km per day to start and finish work at a substantial additional cost per week. The Complainant said that he has always made himself available for meaningful work and he is being punished by the Respondent for something he did not do. The Complainant said that the Respondent has not offered him any alternative work since the end of June 2019. The Complainant stated that when he sent his RP9 notification the Respondent stated that he was on temporary suspension due to “unavailability of work” and the Complainant wishes to rely on this for his claim to redundancy. He said that no offer of employment within a reasonable distance surmounts to redundancy. The Complainant claims that he had been working on behalf of the Respondent at a client’s site close by for approx. 23 years. He said one evening having left his truck at this site he noticed that he had left his phone in the truck and decided to retrieve it later that evening; he drove onto the site in his private car with his partner. He had borrowed an access fob from the night driver to access the site. He was stopped by the security guard who told him that he was not allowed on the premises. The client raised a concern regarding the unauthorised access by the Complainant and sought an investigation. The Complainant said that he was suspended without pay while the case was investigated. He said that the investigation found that he was not involved in anything sinister, just collecting his phone. However, the client said it did not want the Complainant on its site any longer. The Complainant claims that the Respondent said that the only work available was to travel to Dublin to collect a truck and take up his driving assignment for the day and return the truck to Dublin before he could go home. The Complainant said that was an unrealistic alternative and nothing more has been offered since that time. The Complainant cited the following in support of his case; ADJ-00020568 where the objective test considered was the distance from his regular employment for alternative employment and the additional cost incurred. Also EAT case no: RP563/2013, where it was found that an employer failed to offer further work and had to pursue redundancy via filing a RP9. The Complainant said in all his years with the Respondent he never caused any difficulties or caused any wrong and even in the case that led him to be removed off a client’s site he had done nothing wrong and was never sanctioned.

Summary of Respondent’s Case:

The following is a summary of the Respondent’s evidence. The Respondent claims that the Complainant is not properly laid off within the meaning of layoff under the act and he is therefore is not entitled to a redundancy payment on foot of his RP9 form. The Respondent said that the Complainant began his employment in or around January 1996 and transferred to it under a transfer of undertakings. It said that he had primarily operated as a “shunter driver” for it on a third-party client’s site for the last number of years. The Respondent said that on 24 June 2019 the client contacted it to say that the Complainant had been driving around the Site outside of working hours late in the evening with his partner in a private vehicle and had been approached by the security guard and told they had no authorisation to be there. They requested a full investigation. The Respondent said that it asked the Complainant what had happened and found out that he had returned to the truck on site to retrieve personal belongings. However, the client said that it did not want him back on its site and de-activated his security access card. The Respondent met with the client and tried to get a solution to allow the Complainant to return to work on the site. The Respondent said that the Complainant was advised that it had work available for him in Dublin while this was being discussed with the client to see if it could be sorted out. However, the Complainant said he would “leave it” as he was going away on holidays that week. The Respondent said that it received a letter from the Complainant’s Trade Union a day later claiming that he was ‘suspended’ and asking when he would be returning to work. The Respondent said it replied saying that he was not suspended, that he was told he could work in Dublin while it tried to resolve the issue with the client, and it would be conducting a full investigation. The Respondent said that after a number of attempts by it to carry out an investigation, as dates did not suit the Complainant, it finally managed to arrange a meeting on 4 October and a final investigation report issued on 13 November 2019. The Respondent said that no...