ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001830
Complaint 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-00002481-001
08/02/2016
Date of Adjudication Hearing: 30/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and S.39 of the Redundancy Payments 1967-2007 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant is seeking a redundancy payment from the respondent .The complainant commenced work as a Fence erector, on 23 September 2000. He worked 45 hrs per week and received € 555.00 in pay. He did not have a written contract of employment and sometime during the course of his employment, the respondent changed from being a sole trader to a limited company. Pay slips were submitted in support of this change outlining a transition between 2006 and 2008. The work was on a sub contracting basis.
On 31 October 2008, the respondent placed the complainant on notice of temporary lay off. This followed from 11 November 2008 to 1 December 2008. The complainant received a letter from the respondent date 3 December 2008 which projected that the “non work periods will continue until our countries economy becomes stable again ….we predict a very unstable future “.
The complainant worked for a three week period after that , which was followed by another lay off until March 2009, when he was placed on a three day week supported by job seekers benefit .He continually asked if his work situation would change but never received a direct answer .By the end of 2010,he resorted to part time taxi night work as a means to support his family and eventually realigned his tax credits to the new employer, ( taxi work) He continued to work on a sporadic basis for the respondent .He was laid off again from the respondent for a thirteen week period , April – July 2010. Thereafter, he worked 9 days in 2011 and 15 days in 2012. The complainant gave evidence that the respondent, on occasion would call him, perhaps once or twice a month, offering work with very little notice and he was unable to complete these assignments if he had been working late on taxi work. He did not receive payslips after 2009.
He contended that the respondent had deliberately placed him in a limited work situation to force him to find work elsewhere and that the latter day offers of work were piecemeal and aimed at avoidance of payment of redundancy .Some of the calls, received from the company, offering work were for his son . He never received a P45 and his submissions for a P60 were ignored. He met the respondent in 2013 and enquired into a redundancy payment but this did not lead anywhere.
In January 2014, the complainant sought legal representation to secure his redundancy. The complainant was denied redundancy on the basis that he was offered work which he refused. In addition, he was informed that his omission to serve the employer with an RP 9 form rendered his claim void. The case was referred to the WRC in early February, 2016.
The complainant was very aggrieved at the treatment received from the respondent. He described himself as long serving and loyal and he believed that he had been unfairly treated. He contended that he was still an active employee on the books of the company and should be entitled to a redundancy payment, given that his position no longer existed and his position had not been terminated by either party .His objective was always to return to full time work.
Respondent’s Submission and Presentation:
The respondent pleaded that the complainants claim is statute barred .It was common case that the complainant commenced work on 23 September 2000 and that he was not furnished with a written contract of employment.
The respondent placed the complainant on short time from 2008 by means of the required statutory notice. He continued to receive offers of work on a first preference basis throughout the years 2009, 2010, 2011, 2012 and 2013. The respondent paid the complainant €240 in 2013. This was the final payment made.
The respondent did not receive notice of his intention to claim redundancy from the complainant pursuant to Section 12 of the 1967 Act, as provided for by the RP9 form.
In or around the year 2010, the claimant refused work from the respondent and the respondent understood that he was working elsewhere. The complainant last worked for the respondent in 2013 and telephone records were available to prove these offers of work were made. The last formal notice of lay off/ short time were when the complainant was placed on a three day week on 3 March 2009. There was no limitation period here.
In August 2013, the respondent was approached by the complainant seeking a redundancy payment. They agreed to cross check the claim with the company accountant who advised that an RP 9 form would have to be served by the complainant and thereafter could be considered by the company or the social insurance fund. This information was imparted by the respondent’s wife to the complainant one week later but nothing followed until the legal representations commenced in January 2014.
The respondent denied the claim for redundancy citing section 24 of the Act ( as amended) where time limits had overtaken the 52 week limitation period and while no circumstances had been submitted to support a any exceptional or reasonable cause circumstances , a further 52 week extension would continue to render the claim statute barred . The respondent contended that the last day of work was referred to in the complainant’s formal claim for redundancy as emanating in August 2012.
The respondent denied that the complainant was dismissed or that his contract was terminated. Instead the respondent contended that the complainant resigned from his job in 2012 .The complainant had refused work made available to him from 2010 onwards. The respondent contended that the claim was not properly before the Commission as the complainant had failed to serve notice on the respondent pursuant to Section 12 of the Act of 1967 and as a result, no redundancy pertained. In the respondents written submission they sought that the case be dealt with by written submission only.
The respondent submitted the P35 declaration for 2010, which listed the complainant as working for 1 week in 2010. There were five employees left at the company, two of whom were external to the family members. At the hearing, the respondent indicated that there was work available to the complainant at the company.
Issues for Decision:
The issue in this case is whether the complainant is entitled to a Redundancy payment under law?
Legislation involved and requirements of legislation:
1. Lay Off is defined in Section 11 of the Redundancy Payments Acts 1967-2007(The Acts) as follows:
“11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
(a) It is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
(b) The employer gives notice to that effect to the employee prior to the cessation,
That cessation of employment shall be regarded for the purposes of this Act as lay-off.”
2) Short time is defines as:
Where—
(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,
(b) The reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.
(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,
The employee shall, for the purposes of this Part, be taken to be kept on short-time for that week
2. Right to redundancy payment by reason of lay-off or short-time, S 12 the Acts.
12.—(1) an employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—
(a) 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
(b) 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 a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.
(2) 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.
3 Right of employer to give counter-notice. S.13 the Acts.
13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he 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.
(2) 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 a 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.
(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.
(4) For the purposes of S.12 and for the purposes of subsection (3)—
(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;
2 .The First schedule of computation of continuous service in Minimum Notice and Terms of Employment Act 1973 provides that:
1 The services of an employee in his employment shall be deemed to be continuous unless that service is terminated by –
(a) The dismissal of the employee by his employer, or
(b) The employee voluntarily leaving his employment
And
3 A lay off shall not amount to the termination by an employer of his employee’s service
5 Time-limit on claims for redundancy payment.
S.24.—notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—
(a) The payment has been agreed and paid, or
(b) The employee has made a claim for the payment by notice in writing given to the employer, or
(c) A question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.
(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.
(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.
(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—
(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 Director General at his discretion considers reasonable having regard to all the circumstances. .
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have carefully considered the written and oral submissions of both parties. I have also reviewed the notices exchanged between the parties in this case. This review was complicated by the absence of a written contract between the parties, the cessation of payslips in 2009 and the lack of written documentation surrounding the circumstances of the change in the composition of the company from sole trader to limited company sometime in 2006. In addition the management of the “lay off/short time “period by the respondent appeared open ended.
The Legislation in question here is the Redundancy Payments Acts 1967-2007.Section 7 (b) of the Acts provides that a dismissal results” wholly or mainly” from
“Where the requirements of that business for an employee 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“
In St Ledger v Front line Distributors Irl ltd [1995]ELR 160, the EAT held that the “ Impersonality and change “ are two important characteristics of redundancy and that “ Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job”
The EAT went on to stress that “change” must be comprised of “qualitative” change.
I appreciate that the company, like many others, found itself in a compromised trading position some time during 2008. However, I find that that there was a stark lack of frankness on the part of the respondent when it came to informing their longest serving employee of the potential likelihood of the company to either trade out of the difficulties or face termination of employment from 2009 to 2014, a period of five years . I accept the probability that the company was not aware of the actual potential for recovery or diminishment. However, prior to the initial notification of lay off in October, 2008, I find that the complainant worked up to 45 hrs per week and this was not replicated in a sustained fashion past his period of Lay Off and subsequent short time in April 2010
While the interpretation of the word ‘lay-off’ can be “liberal”, according to William Beary v Revenue Commissioners [2011] 22 ELR 137,an employer would need to give notice that it is its belief that the cessation of employment would not be permanent, such notice “can be actual, constructive or imputed.
“Lay Off” is outlined in S.11 of the Acts and in this case, I find that the complainant was laid off with piecemeal interspersed periods of short time work in 2011, 2012, and 2013 up until, his Solicitor applied for redundancy on his behalf on 15 January 2014. The sole paid work in 2013 amounted to €240.
Continuity of service is described in S.1. Of the First Schedule Computation of Continuous service under the Minimum Notice and Terms of Employment Act 1973 as:
“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by
(a) Dismissal of the employee by his employer
(b) Employee Voluntarily leaving his employment”
S3. Provides that a Lay Off shall not amount to the termination by an employer of his employees service
Section 10 provides that a period short of 26 weeks Lay Off is reckonable as service.
The High Court in An Post V Mc Neill {1998] ELR 19 accepted that a lay-off is not subject to any temporal limitation. .
In Irish Shipping v McAdams, unreported, High Court, Murphy J., January 30, 1987, the court declined to accept that the Employment Appeals Tribunal had erred in law in finding that two of the claimants were on lay-off at a time when they were actually in the employment of another shipping line.
Therefore, I find that the complainant found himself in an extended period of Lay Off up until he issued notice of his intention to claim Redundancy on January 15, 2014, He did not resign his position, nor was he dismissed and while, he did not accept all work offered by the respondent due to the clash with his night time taxi work, I find that he accepted a reasonable amount of work up until he realised that his 45 hours could not be replicated at the respondent employment and sought to increase his taxi work to make ends meet. Evidence was submitted on the disparity in job Seekers Benefit and his previous wage at the respondent company which underpinned that action.
Section 12 of the Acts sets out the statutory framework to be followed by the complainant in pursuance of a redundancy payment following Lay Off. I appreciate that the complainant stated that he made very many informal attempts to secure some information on whether his job , as he knew it to be would returned to him but he did not make a formal application for a redundancy payment until January 2014. On February 3, 2014, this application was rejected by the respondent on the basis that there was work available. The respondent did not quantify or qualify this work and on the day of the hearing, referred to the offer of work as sessional and based on random short notice phone calls. This was a clear variance on the 45 hrs per week worked by the complainant up until 2008
Section 13 of the Act provides a statutory framework to guide the response of an employer to a claim emanating from a Lay Off /short time situation. The respondent in the instant case did not follow these timeframes as there was a 20 calendar day gap in time from when the notification of intention to claim was met with a rejection of the claim for Redundancy. The respondent did not make an offer of work to mirror the complainants previous 45 hr week over a 13 week period .I find therefore, that the complainant cannot rely on this protection. The respondent told the hearing that the complainant was informed in August 2013 that he could submit an RP 9 to claim redundancy. It is of note that the respondent did not deny the application for redundancy at that point. This denial came later.
I find that the complainant placed the respondent on notice of his intention to claim a redundancy payment on 15 January 2014, when he presumed that he had been dismissed. This was not followed by an offer of 13 weeks work within a period of 4 weeks from the date of receipt of the claim.
Statutory Limitation Period to claim Redundancy Payment
S24 of the Acts outlines that the onus is on the complainant to claim redundancy within a 52 week period or within 104 weeks on reasonable cause. The respondent contended that the complainant is statute barred.
I note the delay in referring the case to the WRC on behalf of the complainant . The claim was received on 8th February 2016. I find it could not be viewed as fair or reasonable that the complainant would lose out on a claim for a redundancy payment in the absence of completion of Form RP9 alone. I have reviewed the RP9 form and note Part A of the form rests with the employer to sign .I find that the employer did not issue an RP 9 to the complainant in the first instance, therefore I find it rather an overstatement by the respondent now to attribute the failure of the complainant to submit an RP9 form as a credible reason for rejection of a redundancy claim .
I find that I have cause to exercise the discretion invested in me by the Director General of the WRC provided for in Section 24(3) of the Act. I identify the date of termination in this case to be February 11, 2014 and allow the 104 weeks to run from then on reasonable cause.
My reasons being that the complainant had been on a continuous period of lay off/ short time up until he reasonably saw himself dismissed by mid January 2014. This was emphasised at the hearing by the complainant’s representative. The response from the respondent was received on February 4th 2014. I believe that it is reasonable in those circumstances to allow for an extension of the reasonable cause period to February 11 2014, given the longevity of the complainant’s service, his clear confusion regarding his employer’s status and the indolence of the respondent in this regard. In addition, by placing the respondent on notice of his intention to claim redundancy, the complainant forfeited his entitlement to notice.
In Alan Brady V EAT V Bohemian Football Club [2014] IEHC 302, Barrett J, in the context of a judicial review remarked that “time periods are typically intended to thwart the tardy, not punish the prompt “In the instant case the respondent had a responsibility to communicate with the complainant and for whatever reason chose not to .The offer of work did not satisfy section 15 of the Act as it was unreasonable in terms of comparative standing.
I find that I am persuaded by Barrett J’s reasoning in Brady, albeit that the argument is one of prematurity of claim rather than posthumous “The purpose of the law, the principles of equity, the practical reality, and the previous case law of the EAT all lead to the same end, which is that the Tribunal does and did have jurisdiction to hear Mr Brady’s claim “
The respondent was in possession of knowledge, such as it was on the status of the business, this knowledge should have been imparted in a timely fashion to the complainant .I find there was a sizeable void in this regard, where the respondent presumed that the complainants work with the taxi company automatically rendered his contract with the company as terminated without taking any measures to manage the situation. Instead, I find that the respondent presided over an open ended period of Lay Off to seek to retain a good worker in the event that the temporary economic crisis would abate. However, it was not in a position to guarantee him the work that he had been doing, which had been by then reduced to sporadic sessional work. I find that
Therefore, I find that the claim under the Redundancy Payments Acts 1967 to 2007 succeeds and I award the complainant a redundancy lump sum based on the following information:
Date of Commencement 23 September 2000
Date of Cessation: 11 February 2014
Gross Weekly Pay €555.00
Periods of Lay off 11 November 2008 to December 1 2008
22 December 2008 to March 2, 2009
April 23 2010 to July 16 2010
July 16 2010 to February 11 2014 some short work periods concluded in
(2010- 2013)
Short time: March 3 2009 – April 2010
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Dated: 2nd September 2016