RPD161

This appeal is brought on behalf of Kyles Events Limited against a decision of an Adjudication Officer (ADJ-00000060) dated 3 March 2016. The notice of appeal was received by the Court on 12 April 2016. The Adjudication Officer upheld Mr Ostapiuk’s claim for a lump sum payment pursuant to the Redundancy Payments Act 1967. For ease of reference, Kyles Events Limited is referred to in what follows as the Respondent and Mr Ostapiuk is referred to as the Complainant.

Summary of Material Facts

There was no disagreement between the parties in relation to the material facts that fall to be considered by the Court in this appeal. They can be concisely stated as follows:

The Complainant commenced employment as a chef with Thomas Smyth and Sons Limited on 22 October 2012. His place of employment at all material times was at the Cock Tavern in Swords, Co Dublin. He was employed to work a basic 39-hour week but worked additional overtime hours, from time to time. A transfer of undertakings occurred on or about 1 July 2013 by reason of which the Complainant’s employment - on no less favourable terms and conditions, and with his continuity of service preserved – transferred to the Respondent from the aforementioned date.

A receiver was appointed to Thomas Smyth and Sons Limited on 4 June 2015 which resulted in the complete closure of the Cock Tavern shortly thereafter. On 28 May 2015, the Respondent notified the Complainant by email that he was being placed on temporary lay-off.

On 22 September 2015, the Complainant served a Form RP9 on the Respondent and thereby initiated a claim for a redundancy lump sum payment. The Respondent purported to counter this claim by serving Part C of the Form RP9, duly completed, on the Complainant on 1 October 2015. The Respondent informed the Complainant that it was in a position to offer him part-time employment of 22 hours per week for the week beginning 7 October 2015. The Respondent issued a second offer to the Complainant on 8 October 2015. The second offer was based on a 24-hour working week. Both offers would have required the Complainant to work in locations that he hadn’t previously worked in, including at the Malahide Rugby Club and at the Aer Lingus Staff Association Café at Dublin Airport.

It was agreed between the parties that the Complainant’s average weekly wage for the 22 pay periods in which he worked in 2015 was €439.29.

Issue for Determination

The principal question of law that falls to be determined by the Court in the within appeal relates to the proper interpretation of section 13 Redundancy Payments Act 1967 and whether or not the counter-offers of employment made by Respondent meet the requirements of that provision. That section provides:

• “13. Right of employer to give counter-notice

  (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 section 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;

  (b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.”

Decision

Having considered in detail the parties’ written and verbal submissions, the Court determines that the appeal fails and the Complainant is entitled to a lump sum payment within the meaning of the Redundancy Payments Act 1967.

For the avoidance doubt, the following should be taken into account in the assessment of that lump sum:

• relevant period of employment: 22 October 2012 to 28 May 2015

  relevant gross weekly pay: €439.29

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
14 June 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.