RP1864/2011, MN1494/2011

EMPLOYMENT APPEALS TRIBUNAL

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr A. Courell BL

Members:     Mr D. Morrison

                     Mr M. McGarry

heard these appeals at Castlebar on 12 June 2012, 11 March, 8 July 2013 and 18 October 2013.

Representation:

Claimant:        Mr Michael Kilcoyne c/o Castlebar Town Council,

                        Thomas Street, Castlebar, Co. Mayo

Respondent: Mr Dermot Halloran BL instructed by:

       Ms Joan O’Brien, O’Brien Solicitors, Deerpark Business Centre,

         Claregalway Road, Oranmore, Co. Galway

The determination of the Tribunal was as follows:

Determination:

The appellant was employed from 27 April 2006 as a general operative in the respondent’s construction business. The employment was uneventful until December 2008 when work became scarce. The appellant’s position was that he was laid off on 19 December 2008. The respondent’s position was that the appellant chose to leave the employment on that date and return to his native country. The appellant served a form RP9 on the respondent in June 2011 in order to claim a redundancy lump sum by reason of lay-off and the respondent replied on 15 June 2011 stating that the appellant had chosen to terminate his employment and had in any event gone beyond the 52 weeks in which he could claim a lump sum payment.

The appellant lodged the within appeals with the Tribunal on 1 July 2011. The respondent’s position was that as this date was more than 104 weeks after the end of the employment then, even allowing that there may have been reasonable cause preventing the lodgement of the appeal within the initial 52 weeks from the date of termination, the appeal was statute barred as set out in Section 24 (2A) of the Redundancy Payments Acts. The appellant’s position was that he had been laid off on 19 December 2008 and there is no restriction in the Redundancy Payments Acts as to the length of a period of lay off.  

The appellant submitted a form UP20 to the Social Welfare on 7 January 2009 in order to obtain benefit. On this form the respondent stated that “No suitable employment at present time”. Having considered the evidence in this case the Tribunal is satisfied that the appellant did not bring the employment relationship to an end on 19 December 2008. Rather it is satisfied that the appellant was laid off. There is no limit on the length of lay off before claiming a lump sum payment by issuing form RP9. Accordingly, the appeal must succeed and the appellant is entitled to a lump sum payment under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria.

There was a period of non-reckonable service, by reason of lay off, form 19 December 2008 until 3 June 2011.

This award is made subject to the appellant having been in insurable employment under the Social Welfare Consolidation Act, 2005 during the relevant period.

A claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 does not arise where the appellant seeks a lump sum payment after a period of lay off.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)