ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000729

Complaint/Dispute for Resolution:

Venue: Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 04/07/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 under Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background

The Complainant was employed as a Catering Floor Manager since 1996. She was paid €15.00 per hour and worked casual hours. She has claimed that she is entitled to redundancy payments.

Complainant’s Submission and Presentation:

Request for an extension to the time limit

The Complainant stated that it is the Respondent’s position that a number of employees transferred to the new employer. However the Complainant did not and in fact resigned her position. She had been employed by the Respondent not since 2005 as alleged but since 1996. She had been employed on a series of fixed term contracts and she is employed de facto on a permanent basis in accordance with Sec 9 of the Protection of Employees (Fixed term Work) Act 2003. There are no grounds on which she is not a person eligible for payment in accordance with the Redundancy Payments Acts 1967-2007. While she was employed on a casual contract basis based on the needs of the business there was a mutuality of obligation.

It is denied that she was offered the option to remain with the Respondent or transfer to the new employer. It is submitted that the meeting on 19^th January 2014 was a routine induction meeting and not as alleged by the Respondent. She accepts that she handed back her uniform but this was an end of season requirement. She categorically denies that signing the sheet meant that she was resigning from the Respondent’s employment.

She stated that her reasons for the delay in presenting her complaint to the Commission were because she had understood that there was a transfer of undertakings. She had been assured in a conversation by the Respondent that there was a transfer of undertakings probably on 6^th January 2014. Nothing had been given in writing. She worked for the new employer with the same terms and conditions. Some queries arose during the year about their status. In December 2014 the new employer confirmed that no transfer of undertakings had taken place. In March 2015 she sent the form RP77 to the Respondent. By the time that she had formed a suspicion that she might not have been transferred more than 52 weeks had elapsed.

In April 2015 she spoke to her Solicitor and to Counsel in July 2015. The conduct of the Respondent and the new employer was to obscure that fact that she had been made redundant and this conduct facilitated both parties to evade their statutory obligations accruing through either a transfer of undertakings or a redundancy situation. The extension to the time limit should be granted and the substantive matter adjudicated upon.

Respondent’s Submission and Presentation:

On request to extend the time limit

The Complainant resigned her position to take up employment with her new employer in or around 19^th January 2014 and no redundancy payment arises pursuant to the Redundancy Payment Acts 1967 – 2007. The Respondent’s contract ended on 31^st December 2013 and the contract transferred to the new employer. 20 employees transferred to the new employer under the transfer of undertakings regulations. She had been employed on a series of casual contracts from 17^th March 2005 not 2003 as alleged. There was no mutuality of obligation and she was free to decline job offers. Therefore she is not an employee for the purposes of this Act. When the Respondent lost this contract the employees including the Complainant was offered to continue working with them at other sites or they could deal separately with the new employer if they wished. It is understood that a meeting took place on 19^th January 2014 with the new employer for all staff who wished to stay at that location. The Respondent did not believe that a transfer of undertaking applied to the casual staff and they relied upon the European Court of Justice in the Botzen case. At that meeting on 19^th January 2014 the Complainant along with her casual colleagues were clearly told that they had a choice to remain with the Respondent and work other sites or resign and take up a position with the new employer. They were asked to sign up if they wished to work with the new employer and so not to sign if they wished to remain with the Respondent. She signed the form requesting a P45 and this was her resignation from the Respondent. This disentitled her to a redundancy payment.

She has failed to lodge a complaint within the required 52 week period as prescribed by section 24(1) of the Redundancy Payments Acts 1967-2007. There was no contact from the Complainant within the 52 weeks. Therefore no reasonable cause can be said to arise. The first contact was received from the Complainant on 16^th March some 15 months post termination. She submitted a form RP77 dated 23^rd March 2015 claiming redundancy payment. The Respondent replied in writing advising that she had resigned her position in January 2014 and so not entitled to redundancy. Despite this clarification no claim was lodged until 26^th November 2015. This delay further negates the extension of time application of the Complainant. In April and May 2015 she sought further documentation and this was provided. Therefore there is no excuse for the delay in presenting a claim. They cited the Cementation Stanska v Carroll DWT 38/2003 in support. There have been no submissions justifying the delay.

The complaint was presented outside the time limit allowed and so it is statute barred.

Decision on the request to extend the time limit.

Section 24(1) of the Redundancy Payments Acts 1967-2007 requires that complaints are presented within 52 weeks of the date of the contravention.

I note that there is a facility in the Act that this time line may be extended by a further 52 weeks provided reasonable cause has been established that prevented the complaint being presented earlier.

The Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC38/2003) stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

The Employment Appeals Tribunal in the case Byrne v P.J. Quigley Ltd [1995] ELR 205 stated, “it seems to follow that the circumstances involved must arise within the first six months”, in this case it would be the first 52 weeks.

I find that the alleged contravention took place on 21^st January 2014 when the P45 was issued or at the meeting of 19^th January 2014.

I find that there was no contact received from the Complainant until 16^th March 2015 which was some 15 months after the termination of the employment.

I find that she did submit the form RP77 on 23^rd March 2015 claiming redundancy payment.

I find that the Respondent replied in writing advising that she had in fact resigned her position in January 2014 and advising her that she was not entitled to redundancy.

I note that she consulted her solicitor in April 2015 and her Counsel in July 2015.

I find that despite this no claim was lodged until 26^th November 2015.

Therefore I must find that she has not established reasonable cause to extend the time limit.

The alleged contravention took place on 19th or 21st January 2014 and the complaint was not presented to the Commission until 26th November 2015.

Therefore I find that this complaint was out of time.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons I have decided that this complaint was presented to the Commission outside the time limit.

I have decided that I do not have jurisdiction to entertain this complaint.

Dated:   06/10/2016