Complainant

Respondent

Anonymised Parties

Accounts Assistant

Online Publishers

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-00008637-001

7^th December 2016

The Complainant was submitting that the Respondent had failed to pay her statutory redundancy payment when she became redundant.

The Complainant said that on Thursday 15^th September 2016, she was notified by the Respondent that she would be laid off work from Monday 26^th September 2016.     She said that she was told that it was very unlikely that she would have a job to come back to.   She said that she asked for redundancy, but the Respondent told her he was not in a financial position to pay her redundancy payments.   She said that she was informed by the Respondent that after 4 weeks of being laid off they were aware that she could claim for redundancy.

The Complainant said that following advice from Citizens Information and after 4 weeks on layoff she submitted Form RP50 to her named Manager.   On 18^th November 2016 the Complainant telephoned her Manager and was informed that her Manager had passed the Form to the Managing Director (MD) and that she (the Manager) would speak to him again about the matter.

The Complainant said that the MD telephoned her on Monday 21^st November and said that he would be in contact in respect of the question of redundancy in the following few days.   The MD   telephoned her again on Friday 25^th November and asked her what the RP50 forms were.   She told him they were so she could claim her redundancy payment from the State as he had told her he was not in a position to pay her redundancy payments.   She said that he told her that he didn’t want that and asked her how she would feel about getting a redundancy payment in instalments.   The Complainant told the MD she would leave it with him and he could revert to her with a payment plan.

The Complainant said that on Tuesday 29^th November the MD rang her and said that it looked like he could reinstate her in her job in the New Year (she said she was then 10 weeks without work), however he could not discuss it at that time and he would be in contact again.   When she had heard nothing from the MD the Complainant rang him on Thursday 1^st December, to arrange a meeting, however the MD was not free and she suggested that they meet the following day at 9.00am in his Office and he agreed.

At the Meeting on 2^nd December the MD said looked like he was in a position to reinstate the Complainant in her job in the New Year.   The Complainant told him that this was not what she wanted and that she wanted to be made redundant.   She said the MD did not want to hear this and he said that he would have to close the Company.   The Complainant told the MD that she did not believe that there was any security in the job and that her working hours had reduced previously in February 2015 and that she had a family to look after and a mortgage to pay.                                      

The Complainant said to the MD that there were 2 other employees laid off at the same time as her and he told her that one of them was returning to work in the future when he could offer her work but he had no work for the other one.   The Complainant said that this other person is now being paid redundancy payments in instalments, even though she requested this after the Complainant.   The Complainant said the MD told her to leave the matter with him and that he would speak to their Accountant and their Solicitor.

The Complainant said that on Tuesday 6^th December the MD rang her and informed her that he was offering her work in the New Year and that her Manager would send her a letter with a start back date.   One hour later the Complainant rang her Manager about her start back date, however the MD had not told the Manager of such a date.

The Complainant said that following further advice she submitted her complaint to the WRC.

The Complainant said that the MD did not return her call, but on 9^th December she received a letter from the Respondent informing that the Respondent was in a position to facilitate her to recommence work on 12^th December.    

The Complainant submitted that the job being proposed for her return to was not the one she had been performing before her layoff from work.

The Complainant submitted that based on the foregoing she was entitled to her statutory redundancy payment and she sought a finding and decision to that effect.

In response to questions the Complainant confirmed that she had not sent a written notice to the Respondent stating that she intended claim redundancy because of layoff or short-time working and that she had not sent (a filled in) Form RP9 to the Respondent.

The Respondent contested some of the submissions made by the Complainant.  

The Respondent said that the Complainant was an excellent and valued employee with whom they had an excellent relationship (the Complainant confirmed that this was the case).   The Respondent said that they did not wish to lose the Complainant from their employment and that all efforts were made to ensure this did not happen.

The Respondent gave a detailed explanation to the reasons for the layoff of the Complainant and some of her colleagues.     The Respondent said that they sought to make sure the layoff was for as short a period as possible and that the Complainant was returned to work as soon as possible.

The Respondent submitted the letter sent to the Complainant of 15^th September in relation to her layoff and this letter stated:

“It is with regret that, due to serious financial circumstances, the Company now has to notify you that you are being laid off in accordance with your contract, with effect from Friday 23^rd September 2016.

May we assure you that the Company is doing everything possible to increase orders and we will notify you as soon as you are required to recommence work?   All terms and conditions will remain the same with the exception of holiday leave, which will be accrued on a pro-rata basis.

As you may be entitled to benefits, this letter should be taken to your local Social Welfare Office as proof of your being laid off”

The Respondent said they actively and vigorously sought orders for new work in order to be able to return the Complainant and others to work as soon as possible.     The Respondent said that they did manage to secure new orders/work and consequently were in a position to return the Complainant to work.   The Respondent insisted that the work the Complainant was to return to was the same work she had performed before her layoff.

The Respondent submitted a copy of the letter of 6^th December 2016, from them to the Complainant which stated:

“Further to my letter dated 15^th September 2016, the Company are now in a position to ask you to recommence work from Monday, 12^th December 2016.

Please respond with confirmation at you earliest convenience.”

The Respondent said they understood the Complainant’s concerns about her job security, but they insisted what occurred was not a redundancy situation and the Complainant’s job was not redundant, rather she was placed on a layoff for a limited period and her job was available for her     to return to with effect from 12^th December 2016.

The Respondent said the complaint was not well founded and it should be rejected.

I have carefully considered the evidence and submissions made and I have concluded as follows.

The Complainant is claiming that she is entitled to a redundancy payment by reason of layoff.

The right to a redundancy payment by reason of layoff is governed or regulated by Section 12 of the Redundancy Payments Act 1967.   This Section provides as follows:

“(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless 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 a redundancy payment in respect of lay-off or short-time”

The Complainant confirmed to the Hearing that she did not give notice in writing to the Respondent of her intention to claim redundancy, nor did she serve the Respondent, nor did she serve the Respondent with Form RP9.  

Accordingly I must find and conclude that the Complainant has not complied with the conditions necessary to be entitled to claim redundancy by reason of her layoff and that accordingly her complaint is not well founded.

Based on the foregoing findings and conclusions I find and declare that the complaint under Section 30 of the Redundancy Payments Act 1967 is not well founded; it is rejected and is not upheld.