Complainant

Respondent

Parties

Mark Phillips

O'flaherty Motor Body Repairs

Representatives

  self

 No show

Act

Complaint Reference No.

Date of Receipt

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

CA-00050609-001

13/05/2022

The Complainant was placed on short term lay off on the 14th of February 2022. When his inquiries about returning to work remained unanswered and it appeared that the garage had in fact ceased trading, he sent by registered post an RP 9 to his employer on the 16th of March 2022. No acknowledgement of this communication was received. By registered post on the 28th of March 2022, he sent form RP 77 to his employer, while this was acknowledged through phone calls, to date no redundancy payment has been received.

The Complainant’s employment has been terminated on or about the 23rd of March 2022 one week after serving an RP 9 notice on his employer.

The Respondent has no work for the Complainant and the employee has on numerous occasions attempted to contact his employer regarding his entitlement to redundancy without any success.

On or about the 28th of March 2022 he served a RP 77 Form on his employer.

The RP 77 form is used when:

This form may be used by an employee

A. who considers that he/she is entitled to a redundancy payment and his/her employer has

not acknowledged his/her entitlement by giving him/her

(i) Notice of proposed dismissal for Redundancy (Form RP50 Part (A))

(ii) Part (B) of Form RP50

(iii) Lump Sum Claim Declaration

The Complaint was lodged with the Commission on the 13th of May 2022.

A hearing was arranged at Lansdowne House so that the Respondent could reply to the complaint made against them. I am satisfied that they were properly notified of the hearing and failed to attend.

There is no communication from the Respondent concerning the date of the hearing and their attendance at same.

There is not request for a postponement of this hearing.

There is no request for a remote hearing.

I am satisfied that the Respondent was provided with an opportunity to be heard and has not presented any reply to the complaint made against them.

The Complainant has submitted extensive documentation to support their claim such as:

1. Tax Credit Cert for 2001 noting employer;
2. Tax Credit Cert for 2002 noting employer;
3. P60 for 2003 noting employer;
4. Tax Credit Cert for 2003 noting employer;
5. P60 for 2006 noting employer;
6. P60 for 2007 noting employer;
7. P60 for 2008 noting employer; 
8. P60 for 2009 noting employer;
9. P60 for 2012 noting employer;
10. P60 for 2013 noting employer;
11. P60 for 2017 noting employer;

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy as set out at section 12(2) and subject to 1 weeks’ notice to the employer.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 10th of September 2001.

2.       Contractual termination date allowing for 1 weeks’ notice 23rd of March 2022

3.       Date of lay-off 14th of February 2022.

4.       The RP9 Form was served on the employer on or about 16th of March 2022

5.       Gross weekly wage €615

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3-year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 10th September 2001 to the time of lay-off on the 14th of February 2022.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service: service runs from the date of commencement of employment on the 3rd of April 2011 to the time of lay-off on the 15th of March 2020.

Weeks due under the scheme:    (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme:       €600 per week

              Gross weekly wage based on recent payslips €615

Statutory redundancy entitlement: weeks x gross weekly wage = weeks x gross weekly wage

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.

The complaint is well founded.

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 10th of September 2001.

2.       Contractual termination date allowing for 1 weeks’ notice 23rd of March 2022

3.       Date of lay-off 14th of February 2022.

4.       The RP9 Form was served on the employer on or about 16th of March 2022

5.       Gross weekly wage €615

Redundancy