ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000265
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00000148-001 | 08/10/2015 |
Date of Adjudication Hearing: 23/02/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant was employed as a printer by the respondent since March 2004. On 3 July 2015 the printing machine broke and the complainant was told to go home as there was no work for him. On 13 July 2015 the complainant spoke to the Managing Director who told him that they would be in contact and furnished him with a letter for Social Welfare purposes. On 16 July 2015 the complainant was informed that the machine was still broken and that the Managing Director would be in contact with him.
On 30 July 2013 the complainant called to the premises and handed a RP9 form to the Managing Director. On 2 September 2015, having received no further information despite several phone calls, the complainant sent a RP77 form to the respondent. There had been no further contacts other than those iniated by the complainant and no response to the official forms. On that basis the complainant was seeking his Statutory Redundancy Payment. |
Respondent’s Submission and Presentation:
The respondent's Managing Director explained that the company had been in receivership since 2013. There was one print machine and this broke down in early July 2015. An engineer had to come from the UK to inspect it and a major fault was diagnosed. Various complications arose and money had to be found to pay for parts to fix the machine. In the meantime the actual printing work had to be outsourced which was a further cost to the respondent. There was some non-printing work that could be performed on the premises and this enabled the respondent to maintain employment for most employees.
The Managing Director stated that he had not responded to the RP9 or RP77 forms as at that time he was unable to offer the complainant any promise of work. He had had a phone conversation with the respondent in February when he requested him to return to work. At the date of the hearing the machine was still not working but the Managing Director had been assured that it should be back in operation within a week and on that basis would be in a position to take the complainant back into employment.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
Was the complainant made redundant and does he qualify for a payment under the Redundancy Payments Acts, 1967 to 2007.
Legislation involved and requirements of legislation:
The Redundancy Payments Acts, 1967 to 2007, set down the criteria for qualification for Statutory Redundancy Payment. These are;
Employees must have at least two years (104 weeks) continuous service
Have been in employment, which is fully insurable for all benefits under the Social Welfare Acts
Have been made redundant as a result of a genuine redundancy situation .
Section 12(1) of the Acts state;
An employee shall not be entitled to redundancy payment by reason of being laid off or kept on short time unless –
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
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 notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time
In addition Section 13 of the Acts state;
Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice to claim if, on the date of the service of that notice, it was reasonably to be expected that the employee (if he has continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.
Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.
The requirement therefore is that an employee who has been laid off for four or more weeks may give their employer notice in writing of their intention to claim a redundancy payment. The claim can be contested if, within seven days, the employer issues a counter-notice as set out in Section 13.
Decision:
Many months have now elapsed since the complainant was laid off. Indeed even on the day of the hearing the print machine was still out of order. I fully understand the pressure that the respondent’s business was put under as a result of the series of events that have resulted in the loss of the machine for such a prolonged period. The complainant, for his part, was also under pressure due to the lay-off and lack of definite information. He attempted to resolve matters by issuing the prescribed documentation.
In this instance the respondent agreed that he had not replied in any manner to the RP9 Form from the complainant which gives effect to the requirements of Section 12 of the Acts. I therefore find that the complainant is entitled to a redundancy payment under The Redundancy Payments Acts, 1967 to 2007, based on the following criteria;
Date of Commencement: 4 March 2004
Date of Termination: 3 July 2015
Gross Weekly Pay: €630.00*
*The amount of Statutory Redundancy is subject to a maximum earnings limit of €600.00 per week.
The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Dated: 14th March 2016