Complainant

Respondent

Anonymised Parties

Office Administrator

A Hardware Store

 Representatives

Self-represented

Self-represented 

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00009200-001

19/01/2017

The complainant worked with the respondent from 2007, in the role of Office Administrator. In March 2016 she was diagnosed with cancer which required biopsies, surgery and chemo which finished in August/September 2016. She contacted the respondent regarding her return to work and received notification from his solicitor that there was no work and enclosed her P45.   She sought redundancy payment.    

The complainant was happy to proceed unrepresented with her son in attendance. The complainant stated that she had a good relationship with the respondent and had worked there since 18/03/07 for 9 years. In March 2016 she underwent a mammogram followed by a mastectomy and chemo which commenced in June and finished around August/September 2016. She called to the respondent’s premises in October 2016 regarding returning to work.   She felt he hesitated and when she asked would she get her job back he replied that he would see.

She was going on holidays and planned on returning to work after her holidays and phoned on 8^th November but there was no reply. On 10^th November 2016 the respondent text her that “Things are seriously quiet nothing happening have to wait to see what the new year brings” and the complainant read from this that her employment was being terminated owing to there being no role for her. She followed up with him with a text and an email but he did not reply until she received a letter from his solicitor on 22^nd November confirming her employment had ended as “he did not have any vacant positions at the present time and is now forwarding your P45”. The complainant sent her RP77 on 6^th December.

The complainant advised that she was very distressed by the actions of the respondent and as a single parent her means of earnings were cut off in a year that had already been very difficult for her.

The respondent was happy to proceed unrepresented with a friend in attendance. He advised that he had a good relationship with the complainant and that even when his business was quiet he had kept her on.   He advised though that a grocery/hardware store in rural Ireland was finding it difficult to survive and even though the Irish economy is improving things have been very difficult for him.

He confirmed that his solicitor had written the letter to the complainant but that he was not happy with the letter and contacted the solicitor afterwards to say that the letter was wrong as he did have hours for the complainant. He confirmed that the letter was not withdrawn nor did he contact the complainant regarding the content of the letter. He confirmed that it was quiet in November and that he took on a girl for 12 hours per week in March 2016, who is still doing those hours. He advised that he had 12 hours per week available for the complainant and he had no issues with her performance during her time with him. He disputed her start date and after the hearing provided information which detailed her start date as 7^th May 2007, a copy of which was forwarded to the complainant and for which she was given 5 days in which to reply but did not.

There was general agreement around the main facts of the case, namely that the complainant worked for 9 years with the respondent without incident and that between March 2016 till approximately October 2016 she was unavailable for work owing to treatment and recovery from a serious illness. While it was initially disputed whether she had maintained contact with her employer during this absence, the respondent conceded on the day of the hearing that the complainant had kept the respondent updated with her progress and had received flowers and good wishes from him with regard to her recovery.

When she engaged with him regarding her return to work he appears to have been vague and hesitated and said business was quiet and he did not appear certain that he could maintain her hours and sent her a text her on 10^th November saying he would “wait to see what the new year brings”. It would appear reasonable to see how the complainant might read into this that her role was being made redundant, bearing in mind that there were around 2 months to the new year. This was reaffirmed by letter she received from the respondent’s solicitor. She also advised that if it was not busy coming up to Christmas, she could not imagine it being busier after Christmas.

What is very surprising is that when the respondent asked his solicitor to write out to her, he stated that he did not know the content of the letter the solicitor issued and would have worded it differently. This letter, sent on the respondent’s behalf, stated that “he did not have any vacant positions at the present time”. If it was the case that the solicitor had overstepped the mark with this letter, there was an opportunity for the respondent to step in and correct this but he did not.

The respondent confirmed that he received a copy of the letter after it was sent out and confirmed that he contacted the solicitor to say that the letter was not entirely accurate as there were hours available but he failed to contact the complainant to explain the situation to her or to withdraw/amend the letter sent on his behalf. Furthermore, there had been other opportunities for the respondent to clarify the situation regarding the letter sent out but he had failed to so.

The complainant maintains that her position has been in effect made redundant as the respondent advised that he did not have any work for her, forwarded her P45 to her and never disputed her claim for redundancy when she sent an RP77 to him.

Section 7(1) of the Redundancy Payments Acts provides that:

(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

( a) he has been employed for the requisite period, and

( b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

Furthermore, Section (2) goes on to state:

“ For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees 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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

The complainant was ultimately advised that the work that she had been employed for had ceased or diminished which was followed up by issuing her the P45. If it was intended to be a lay-off situation, the complainant was never advised how long it would be sustained for, apart from a loose reference to the new year. If the intention had been to put her on short-time working, the complainant was never advised as to the number hours per week she would be working or how long this short-time working would be maintained. If the employer disputed the claim for redundancy, he could have issued notice stating that he would be able to provide at least thirteen weeks work to the employee within four weeks of receipt of the claim from the employee as per Section 13 but did not do so.

Therefore, based on the all the evidence I deem that the complainant’s position has been made redundant and therefore, subject to the appellant having been in employment which is insurable for all purposes under the Social Welfare Acts, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds. Based on the evidence of the respondent regarding the complainant’s start date, which the complainant did not respond to or dispute, I award the complainant a redundancy lump sum based on the following:

Date of Commencement:        7^th May 2007

Date of Termination:               10^th November 2016

Gross Weekly Pay:                  €337.95

Subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Acts, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following;

Date of Commencement:        7^th May 2007

Date of Termination:               10^th November 2016

Gross Weekly Pay:                  €337.95

Redundancy, no hours available,