RP645/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                             CASE NO.

EMPLOYEE-appellant                                                                                               RP645/2012

Against

EMPLOYER  -respondent 1

EMPLOYER  -respondent2

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. T.  Ryan

Members:        Mr D.  Moore

                        Mr O.  Nulty

heard this appeal at Mullingar on 19th December 2012 and 22nd May 2013

Representation:

_______________

Appellant:                  

Respondent 1:             In Person

Respondent 2:            

The appellant is claiming a redundancy payment arising out of her employment, with Respondent 2, which terminated in August 2007. As she is outside the maximum period of 104 weeks for bringing such a claim the appellant is relying on Section 13 of the Redundancy Payment Act, 1979 which amends Sec 24 of the Redundancy Payments Act 1967 (hereinafter referred to as 'the Principal Act') which sets out the circumstances in which the time limit for lodging a claim under the Redundancy Payments Act can be extended.

Section 13 (3) (a) states:

         ‘Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Tribunal—

(a)        that failure to make a claim for a lump sum before the end of the period of 104     weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b)                    that such ignorance arose out of or was contributed to by a breach of a statutory     duty to give the employee either notice of his proposed dismissal or a redundancy certificate

the period of 104 weeks shall commence from such date as the Tribunal at its discretion considers reasonable having regard to all the circumstances.’

The appellant lodged her claim with the Tribunal in 2nd May 2012 for a redundancy payment for the period from 2003 to 2007.

The appellant was a special needs assistant (SNA). She commenced employment on the 22nd of September 2003 with Respondent 2 - a primary school. Respondent 1 is the Department of Education & Skills (DES). It is common case that Respondent 2 is the employer and that the claimant's salary was paid by the DES. DES required the appellant to complete a ‘Notification of Appointment Form’ on commencement of employment. She was employed on a ‘child specific’ contract. At all times the appellant was paid by DES and her increments continued throughout her employment from 2003 until her employment terminated in January 2010.

In 2006 DES produced a Circular 58/2006 entitled ‘Redundancy arrangements for Special Needs Assistants’ outlining the policy and procedures for redundancy.  Paragraph 5.5 states, ‘where a special needs assistant receives a redundancy lump sum payment, his/her continuity of employment is broken. The period of service reckonable for redundancy payment purposes will only consist of the period of the special needs assistant’s continuous service in the school in which she/he was last employed.’ The circular also stipulates that any application for redundancy should be made within a 52 week period after the date of termination of the employment.  This circular was available on the DES website and was also distributed to all schools.

In 2007 the child, the appellant had been employed to assist, was moving to secondary school. In July 2007 DES sent respondent 2 a ‘Notification of Special Needs Assistant Leaving’ Form to be completed by the respondent and appellant stating a leaving date of 31st August 2007. The appellant never received any written notification that her position was being made redundant.

Neither the appellant or Respondent 2 were aware of Circular 58/2006 or the appellant's entitlement to claim redundancy on termination of her employment in August 2007. Her entitlement was only brought to her attention in 2010. Respondent 2 wrote to the DES on the 20th of July 2010 stating that: ‘The school was unaware that a redundancy situation existed at that time and now enclose the RP50 and Form SNA Red 1 to rectify the matter.’  After the appellant had applied for a redundancy payment she wrote to DES on the 6th of December 2010 again outlining the circumstances of her application, and the fact that the redundancy policy/entitlement is not outlined in the ‘child specific’ contract she had with respondent 2.

The appellant applied and was successful in securing another SNA role in a different school (School A) in September 2007 and continued her employment as an SNA until 2010. In 2010 she was told that her position was being made redundant as of the 31st of January 2010 and was accordingly informed she was entitled to claim redundancy. On the 10th November 2010 the appellant claimed redundancy from 2007 to 2010. This redundancy payment was made in or around the 11th November 2010

On the 20th July 2010 Respondent 2 wrote to the DES and advised them that they were unaware that the appellant was entitled to be paid redundancy arising out of her employment from September 2003 to June 2007. On the 6th December 2010 the appellant wrote to the DES advising them that she only became aware that she was entitled to be paid redundancy from Respondent 2 when she received her redundancy payment from School A. On the 20th December 2011 the DES wrote to the claimant advising her that ‘You were entitled to make a claim for a redundancy payment for that redundancy (2003-2007) but failed to do so within the time limit of 52 weeks.’  The appellant was not paid redundancy for the period from 2003 to 2007.

The appellant lodged her T1A form with the Tribunal on the 2nd of May 2012. The appellant did not lodge the T1A initially in 2010 as she waited until December 2011 for the decision on her redundancy entitlement from the DES.  The delay in the response from DES was due to the large volume of claim forms received at that time.

Determination:

This was a difficult case for the Tribunal to decide. It commenced its deliberations by considering in detail Section 24 of the "the Principal Act" as amended by Section 13 of the Redundancy Payments Act 1979.

Section 13 (3) (a) deals with the failure to make a claim within the prescribed period of 52 weeks (or 104 weeks if the EAT is satisfied that the claimant had reasonable cause for failing to make the claim within 52 weeks) and the circumstances in which this time limit could be extended. It provides how this time limit could be extended as follows:

that the employee's "failure to make a claim ....within 104 weeks....was caused by:

"his ignorance of the identity of his employer or employers" (or by)

"his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer"

The appellant entered into a Contract of Employment with Respondent 2 on the 22nd September 2003. The Tribunal noted that this contract clearly identified the name of the employer so the appellant could not be said to be "ignorant" of the identity of his employer" nor could she be deemed to be "ignorant" of a change of "identity of his employer or employers, or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer". Here again the appellant cannot be said to be ignorant of the identity of her new employer because she signed a Contract of Employment with a different School -  School A on the 8th August 2007.

The Tribunal then went on to consider Section 13 (3) (b) [which cannot be considered in isolation from Section 13 (3) (a)]

“that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate”.  The Tribunal  carefully considered the words "or was contributed to by a breach of statutory duty to give the employee either notice of redundancy or a redundancy certificate". Respondent 2 had a statutory duty to give the claimant a Redundancy Certificate. This clear from Sections 17 (1) of the Principal Act as amended by Section 10 of the Redundancy Payments Act 1971 and Section 7 of the Redundancy Payments Act 2003 and by Section 18 of the Redundancy Payments Act 1967 (as amended by the Redundancy Payments Act 1971).

Section 17 (1) of the Principal Act (as amended) states:

"An employer who proposes to dismiss by reason of redundancy an employee who has not less than [104 weeks] service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal."

Section 18 (1) of the Principal Act (as amended) states:

"When an employer dismisses by reason of redundancy an employee who has not less than 104 weeks continuous employment, he shall give to the employee not later than the date of dismissal a certificate [in this part referred to as a Redundancy Certificate"]. 

 It is well settled, that in the absence of a statutory provision to the contrary, the limitation period runs from the time a cause of action accrued, and not from the date on which the claimant came to know the nature or extent of his/her legal rights (McDonnell V Ireland [1998] 1 IR 134.

That proposition was put beyond doubt in the case of Minister for Finance V CPSU, PSEU and IMPACT [2007] 18 ELR 36.  This was a case in which civil servants sought an extension of time to bring proceedings under the Anti-Discrimination Pay Act 1974. They claimed that they were unaware that their legal rights had been infringed until the ECJ gave judgment in C-1/95 Gerster V Freistaat Bayern [1997] ECR 1-15253, in which a point identical to that upon which they relied in their substantive case had been decided. In holding that time could not be extended for the reason advanced Laffoy J stated ;

"Further under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant or the absence of a legal precedent which indicates, that, as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run...."

The Tribunal can only extend the time for the appellant to bring a claim for redundancy if she can establish that she was "ignorant" of the identity of her employer as set out in  Section 13 (3) (a) of the Redundancy Payment Act, 1979, as amended. The appellant entered into a Contract of Employment with Respondent 2 on the 22nd September 2003. This contract clearly identified the name of the employer so the appellant could not be said to be "ignorant" of the identity of her employer" nor could she be deemed to be "ignorant" of a change of "identity of his employer or employers, or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer". Here again the appellant cannot be said to be ignorant of the identity of her new employer because she signed a Contract of Employment with a different School -  School A on the 8th August 2007.

Can the claimant avail of Section 13 (3) (b) which would have allowed the Tribunal extend the time if it was so minded? The Tribunal takes the view that Section 13 (3) (b) cannot be considered in isolation from Section 13 (3) (a). Again it is worth referring this section (Section 13 (3) (b)“that such ignorance”(emphasis added) arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate”. The Tribunal paid particular attention to the words "such ignorance". These are strong words and since the claimant was aware of the identity of her employer she cannot avail of, what for her would be,  the saving provisions in Section 15 (2), which would have allowed the Tribunal, if it was so minded, to extend the time for bringing a claim redundancy payment. 

The Tribunal noted that Respondent 2 had  a  "statutory duty to give the employee either notice of redundancy or a redundancy certificate". The Tribunal also considered the somewhat unique circumstances where the claimant was paid by Respondent 1 and employed by Respondent 2.  However none of this assists the Appellant because she was not "ignorant" of the identity of her employer.

For all the reasons set out herein the Tribunal is satisfied that the claim is statute barred and thus has no jurisdiction to hear the claim.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)