RPD162

This appeal is brought on behalf of Papu Stores Limited against a decision of an Adjudication Officer (ADJ-00000618) dated 30 March 2016. The notice of appeal was received by the Court on 10 May 2016. The Adjudication Officer upheld Ms Witczak’s claim for a lump sum payment pursuant to the Redundancy Payments Act 1967 (“the Act”). For ease of reference, Papu Stores Limited is referred to in what follows as the Respondent and Ms Witczak is referred to as the Complainant.

Summary of Material Facts

At the material time, the Respondent operated two stores retailing polish food items – one store was located in Galway and the other in Limerick. The Complainant was employed from April 2010 as a supervisor in the Galway store. The Respondent was forced to close the Galway store with effect from 29 March 2015. The Respondent placed the staff at the store on temporary lay-off. The Galway store has not re-opened in the intervening period. The Respondent continues to operate its Limerick store. However, as of the date of hearing of this appeal – 20 July 2016 – the Respondent’s status on the Companies Registration Office’s website was “listed for strike-off” due to its failure to file annual accounts since 2012.

The Parties’ Submissions

The Complainant submits that the Respondent did not confirm her lay-off in writing until some 6 days after the closure of the Galway Store when she was issued with an undated Form RP9. Some 79 days after the store’s closure, and with no sign of the store re-opening, the Complainant says she requested a statutory redundancy payment from the Respondent by submitting Part B of the Form RP9 on 1 September 2015. The Respondent met this request by offering the Complainant alternative employment at a different location which was not acceptable to the Complainant. The Complainant further submits that the Respondent’s principal subsequently indicated to her (on 25 September 2015) that the company accepted a redundancy situation existed but that the Respondent was only in a position to make the necessary lump-sum payment in instalments. When the Complainant had heard nothing further from the Respondent, she again requested her P45 and redundancy payment on 12 October 2015 at which point the Respondent indicated it intended to contest the Complainant’s entitlement to redundancy in the circumstances. The Complainant referred the matter to the Workplace Relations Commission, a hearing was arranged and the Respondent did not attend. The Adjudication Officer upheld her claim under the Act and awarded her €4,344.00.

The Respondent submits that the closure of the Galway store was caused by events beyond its control: the landlord was foreclosed on and a receiver was appointed over the premises. The Respondent’s representative informed the Court that the Respondent offered the Complainant what it considered to be suitable alternative employment on a number of occasions – including on 18 June 2015 and19 June 2015 . The alternative employment consisted entirely of administrative and accounts work to be performed at the Respondent’s principal’s home address, some 9 kms from the location of the store that had closed.

Discussion and Findings

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 of the Act 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

The Court determines that the Respondent failed to issue the Complainant with an offer of 13 weeks’ continuous employment in the role for which she had been employed. Accordingly the appeal fails: the Complainant is entitled to a statutory redundancy payment in respect of her period of employment between April 2010 and 29 March 2015 based on a weekly wage of €400.00 per week.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
26 July 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.