ADJ-00002645

A Door and Window Fitter -V- Glazing Contractor

Adjudication Decision Reference: ADJ-00002645

1. Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 27/07/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2. Procedure:

2.1. In accordance with Section 41(4) of the Workplace Relations Act, and Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaint 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).

4. Complainant’s Submission and Presentation:

4.1. This claim refers to a Door and Window Fitter and Aluminium fitter (the Complainant) who is a Polish National and who was employed with the respondent from 7th January 2013 until 10th March 2016.

4.2. The Complainant’s wage was €585 gross per week.

4.3. The complainant maintained that he received a lay off letter from the Respondent on 8th January 2016 to advise him that due to a shortage of work there is no work available for him from 11th January 2016, but this should only be for a few weeks.

4.4. The claimant waited for some weeks however he received no further information from his employer. On the 24th of February 2016 the complainant submitted an RP9 form to the Respondent by post, and on the 25th of February 2016 he received a phone call from the Respondent regarding the RP9 form where he was advised that there would be work but that the Respondent was unsure of the dates or when the work would start. The Complainant was asked to think about the situation and to email the company secretary of what his plans were.

4.5. On 1st March 2016 the Complainant emailed the company secretary advising that as no work had been forthcoming he could no longer afford to wait for work wait from the Respondent. On 9th March 2016 the complainant sent a further email to the company secretary enquiring as to whether the Managing Director had reviewed the RP9 and the Complainant was advised that the matter would be looked into.

4.6. On 10th March 2016 the Complainant submitted a RP77. Form to the Respondent.

4.7. The complainant advised that on the 14th March 2016 he received an email from the Respondent stating there was an expectation that some projects were due to start within four weeks. However, as the Complainant had already submitted an RP9 form he was seeking his redundancy payment.

4.8. On 25th March 2016 the Complainant again emailed the Respondent advising that he had issued an RP9 and an RP77 and had not received a response and he therefore requested clarification on the matter. The Respondent replied to the claimant asking that the Complainant visit the Respondent to discuss matters. However, at that stage the Complainant advised the Respondent that as he had received no work (for over two months) he had to seek employment elsewhere. The Respondent again asked if the Complainant was available to meet to discuss matters and on 31st March 2016.  At this stage the Complainant advised the Respondent by e-mail that he could not agree to the work that was being offered at this stage as it was a different role and he was seeking his redundancy payment.

4.9. The Complainant maintained that after he issued the RP9 form to the Respondent and subsequently reminded the respondent of his submission a number of times, the Respondent failed to respond to his claim for a redundancy lump sum payment.

4.10. The Complainant therefore advised he had received no redundancy payment and is subsequently seeking adjudication on this matter.

5. Respondent’s Submission and Presentation:

5.1. The respondent did not make a written submission and failed to attend the hearing.

6. Decision:

6.1. Section 41(4) of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint in accordance to the relevant readdress provisions under Schedule 6 of that act. Section 39 of the Redundancy Payments Act, 1967 required that I make a decision to any contraventions under the Redundancy Payments Act.

6.2. The decision before me is whether the claimant is entitled to receive a redundancy payment in accordance with Section 7 of the Redundancy Payments Act, 1967.

6.3. Based on the uncontested submission from the Complainant I am satisfied that the Complainant  received notification from the Respondent by a way of writing that he was being laid off due to shortage of work, with the layoff commencing from the 11th January 2016. I am also satisfied that based on the email evidence from the Complainant that he had submitted Part B of the RP9 form on 24th February 2016, over four weeks after the period of layoff commenced and when there was no guarantee from the Respondent of a return date for work.

6.4. From 1st March 2016 to 30th March 2016 the Complainant made a number of contacts by email with the Respondent, but the Respondent failed to confirm when work would be available and also failed to respond to the RP9 form, and an RP77 which was submitted on 10th March 2016.

6.5. In accordance with Section 11(1) of the Redundancy Payments Act 1967 (the Act)  an employee’s employment ceases by reason of his employers being unable to provide work for which the employee was employed to do, and Sec 11 (1)(b) of the Act which states “the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment should be regarded for the purposes of this act as layoff.  It is clear the Complainant was provided with layoff notice by the Respondent and where the Respondent was not in a position to provide work for the Complainant from 11th January 2016 until at least 31st March 2016, and where at that stage the Complainant had sought alternative employment.

6.6. In accordance with Section 12(1) of the Act an employee shall not be entitled to redundancy payment by reason by having been laid off or kept on short time unless:

(a) he has been laid off or kept on short time for 4 more consecutive weeks or, within a period of 13 weeks for a series of 6 or more weeks of which not more 3 were consecutive, and (b) after the expiry of the relevant period of layoff or short time mentioned in paragraph (a) and not later than 4 weeks after the cessation of the day off or short time, he gives his employer notice (in this part refer to as a notice of intention to claim) in writing of his intention to claim redundancy payment and respective layoff or short time.

6.7. In addition Section 12(2) states “Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

6.8. On that basis I am satisfied that the Complainant qualifies for a redundancy lump sum payment as no work was provided to the Complainant for a period of four weeks and where the complainant did provide notice in writing to the employer some 6 ½ weeks after receiving his layoff notice.

6.9. In accordance with Section 13 of the Act, the Respondent has also failed to give notice to the Complainant (counter notice) in writing that he would contest any liability to pay him redundancy.

6.10.  I therefore find that the employee in entitled to a redundancy lump sum payment under the Redundancy Payments Act, 1967 and 2007 based on the following criteria: • Date of commencement: 7th January 2013 • Weekly salary: €585 gross • Date of Termination: 25th March 2016

Dated:   4th October 2016