ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002835

Complaints for Resolution:

Date of Adjudication Hearing: 11/10/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing:

 A Store Manager V A Marketplace

Respondent’s Submission and Presentation:

The Respondent disputed all three claims for Unfair Dismissal, Minimum Notice and Redundancy. The respondent submitted that the complainant commenced work with the respondent on 28 May, 2007. He started initially on 20 hours a week, working full time in the summer periods.

The complainant went on sick leave due to back trouble from January 2014 to February 2015.

Unfair Dismissal Claim:

The respondent submitted that the complainant did not have 12 months continuous service necessary to ground a claim for Unfair Dismissal .The respondent submitted that the complainant was dismissed on 26 October 2015 due a down turn in business. The dismissal was attributed to redundancy .He had not been replaced outside of the owner himself and the presence of the owners son at weekends.

Minimum Notice Claim:

The respondent conceded that the complainant was due one weeks’ notice in light of his break in service 2014-2015.

Redundancy Payments Claim:

The respondent rejected the claim for Redundancy on the basis that while the complainant had been recorded on sick leave, he submitted that the complainant was operating another business in the vicinity and had been witnessed in this capacity by a number of people .This constituted a break in service as the complainant was self -employed. His resumed service centred on 15^th February 2015 and 26^th October 2015, which did not qualify him for a lump sum payment under the Redundancy Payments Acts.

The respondent gave evidence in the form of the owner of the business. He recalled that the complainant had first commenced with the business on a part time basis and working full time over the summer period. He was on sick leave from 6 January 2014 -6 February 2015. The complainant submitted medical certificates.

Six months into the absence, the owner heard from customers that the complainant was setting up in business in a location in the vicinity .He received the sick certs by email and discovered a copy of an Invoice with the complainants name inserted .The owner saw the complainant in the window of a shop.

The owner received one weeks’ notice of the complainant’s intention to return to work on February 16, 2015.The business was not doing well and he sought advice on how to manage the complainants return. He was advised to reduce the complainant’s hours and reversed this on foot of an appeal from the complainant .The business deteriorated further and he had to let the complainant go at the end of October 2015. He was not replaced outside members of the owner’s family who assisted the business on a casual basis. There were no funds available to cover redundancy but the respondent was advised that the period of January 2014 –February 2015 constituted a break in service and disentitled the complainant to a redundancy payment. The respondent agreed to furnish copies of pay slips; these were received during the third week of October and copied to the complainant.

Complainant’s Submission and Presentation:

It was common case that the complainant worked at the respondent business without incident until his commencement on sick leave in January 2014. He told the hearing that he had been ill during the 13 months until he resumed work on 16 February, 2015. He had submitted regular certs He contested the proposal to decrease his hours and resumed full time work within the fortnight.

The complainant was dissatisfied with the heavy lifting required at the business and told the hearing that he struggled with heavy loads. He denied running a business during his sick leave, stating that he had assisted his wife in the running of her newly opened business. He, himself had been in receipt of illness benefit.

During October, 2015, the complainant was approached by the owner to consider his resignation in light of the worsening financial status of the business. The complainant refused .On November, 2, 2015, his employment was terminated .This was followed up by way of letter on November, 4, 2015.He was informed that the business was no longer in a financial position to support employees .The complainant sought his Redundancy through his Union but was met by allegations from the owner that he had been working during his sick leave .He was unable to secure his lump sum payment and referred his case to the WRC on 18 April, 2016

The union on his behalf claimed a lump sum redundancy payment in response to 8.5 years’ service and payment of four weeks’ pay in lieu of notice .The claim for Unfair Dismissal was withdrawn during the course of the hearing.

During cross examination, the complainant denied holding a letting or tenancy agreement. He stated that he had not been loading or unloading fruit and vegetables during his period of sick leave He denied working during his sick leave.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. This claim was withdrawn during the course of the hearing.

Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires me to make a decision in the case and Section 39 of the Redundancy Payments Act, 1967 requires me to make a decision in the case.

I have listened carefully to the evidence adduced by the parties. The respondent contended that the period of illness during 2014 and 2015 amounted to a breach of contract .This was compounded by reports that the complainant was engaged in other work, thus undermining his sick leave .The respondent gave clear evidence of financial challenges to the business which is currently being wound up .On the complainants part, he contended that his 8.5 years’ service was not compromised either through illness or through external employment, which he denied.

In a bid to resolve the conflict between the parties, I requested a copy of a Dept. Of Social Welfare Certificate confirming what exactly had been paid to the complainant during the period described as sick leave. I also requested that the respondent furnish the last three pay slips given to the complainant .Both of these requests were acted on and I am grateful to the parties for their prompt response.

The primary legislation in this area is the Redundancy Payments Acts 1967-2007 .Section 7 of which outlines:

General Right To A Redundancy Payment

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four yearsending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.

……..

The EAT in St Ledger V Frontline Distributors Ireland Ltd [1995] ELR 160 highlighted the two bedrocks of a redundancy situation: “impersonality and change” .These premise refer to the job and not the person. It is sometimes difficult, especially in a small business of two to three employees to stand back and view the emerging situation objectively and in accordance with statutory imperatives .I have sought to apply that reasoning in my decision.

I accept and have a full understanding of the challenges of the respondents’ financial status. I have examined the letter sent to the complainant on November 4, 2015:

“The financial situation at X is very serious and debt ridden, and the business can no longer support an employee “

I find that this description corresponds with the spirit and intention of Section 7(2) (c) of the Acts. On its own merits, therefore, it should lead to a situation where a lump sum redundancy payment can be made .However; the claim was vigorously defended by the respondent.

During the course of the hearing, I found that the complainant was covered by a private income continuance scheme during the period of his sick leave. These are usually subject to medical underwriting. In addition, the complainant gave evidence that he received Illness Benefit from the Dept. of Social Protection for the affected period.

I had a difficulty in accepting the hearsay evidence submitted by the respondent from parties not available to the hearing in relation to the complainants working elsewhere and for himself during the period of sick leave .There was no material evidence available to establish this connection. Therefore, I must prefer the direct evidence adduced by the complainant on his continuous period of sick leave.

I am satisfied that the complainant has demonstrated a continuous payment of illness benefit as underwritten by medical practitioners and validated by the Dept. of Social Protection from 6 January 2014 to 14 February 2015.

Schedule 3 of the Acts recognises that service is judged as continuous outside a termination by the employer or a voluntary departure by the employee. In this case, I am satisfied that the terms outlined in the November 4,2015 letter penned by the respondent to the complainant amount to a dismissal through redundancy in accordance with Sec 7(2)(c ) of the Acts .

The period of sick leave does not disturb the claim and for these reasons, I find that the complainant has not waived his statutory entitlement to a redundancy lump payment and his employment had been continuous from his commencement on 28 May 2007 to 2 November 2015 until it was terminated by reason of redundancy.

His claim succeeds.

Decision:

CA-00003913-001 The claim for Unfair Dismissal was withdrawn.

CA-00003913-003 Claim for a lump sum Redundancy Payment

I have inquired into the claims under the Redundancy Payments Acts 1967-2007 and the Minimum Notice and Terms of Employment Acts 1973-2005. I have considered the evidence and submissions of the parties.

I find that the complainant is entitled to a lump sum redundancy payment calculated on the following criteria:

Date of Commencement:       28 May 2007

Date of Termination:               2 November 2015

Gross Weekly Pay:                     €456.00 (38 hour week)

Period of Illness (verified by Dept. of Social Protection): 6 January 2014 – 14 February 2015

The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00003913-002 Claim for Payment in lieu of Minimum Notice.

 Minimum period of notice.

1. .—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

……….

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

I find that the complainant is entitled to receive payment in lieu of his statutory notice period of 4 weeks in accordance with Section 4(2) (c) of the Act.

Dated:   16^th November 2016