ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004328

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 20/01/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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’s case is that he commenced work for the Respondent on the 9^th of January 2012 as a crane driver.

On the 24^th of August 2015 he was notified by a colleague that he was being “let go”. The colleague was a general operative. The foreman of the site he was working on said he didn’t know what was going on. The Complainant spoke with the managing director and was told “if that’s what you’re told, that’s what it is”.

The Complainant texted the accounts manager looking for his P45. This wasn’t produced to him due to what was described as “a glitch in the computer”.

It was then agreed between the parties that he was being laid off as opposed to terminating his employment contract.

The Complainant was in a difficult financial predicament. His wife wasn’t working and he had three children.

By the 21^st September 2015 the Complainant was requested to go back to work doing snagging work. He was promised that he would not be laid off again.

On the 23^rd October 2015 the Complainant was laid off again.

Again, the Complainant asked for his P45. He also asked about a redundancy payment. He sent a text on the 13^th of November 2015 to the accounts manager

“just wanted to see did you get to talk to the others about redundancy”.  

On the 17^th of November 2015 he received a replying text

“only getting a chance to answer. You know the lads away for the last couple of days. The lads said there is work available for you in next few weeks. [Redacted] has started and [redacted] due to start any day”.

On the 3^rd of December 2015 the Complainant’s wife received an email from one of the managers asking if the Complainant would be interested in carrying out snagging work in a leisure centre in a different part of the country. The Complainant was advised that it would be a few weeks work and that there were other jobs starting up. He was asked to let her know what he thought.

The Complainant replied on the 4^th of December 2015 and advised that he would need money to travel up and down to the place of work and if he went back would he have to work a week in hand again. He again raised about his redundancy.

The Complainant emailed again on the 26^th of February 2016 asking if somebody could give him a call regarding his redundancy payment and he would like to know who was going to be paid or not.

He received a reply on the 26^th of February 2016 advising that he was not made redundant and that he was not entitled to a redundancy payment.   The Respondent confirmed that they had started a new project and that they had vacancies there if he was interested.

The Complainant replied stating that as per the advice he received he was laid off and he didn’t break his entitlements by looking for redundancy.

Respondent’s Submission and Presentation:

The Respondent’s position was that they had reviewed their records and sought advice on the matter and there was no obligation on them to pay any redundancy.

Their record was that the Complainant was in full employment until the 4^th of September 2015 and he was placed on temporary lay off for a period of three weeks. He was then given four weeks work followed by a further period of lay off from the 23^rd of October 2015.

Their position was that they verbally conveyed to him and he was given updates that jobs in the pipeline were temporarily delayed due to factors outside of the company’s control and they would start in the short term.

Their position was that within days of receipt of their letter of lay off on the 23^rd of October 2015 the Complainant called to their office and requested his P45 advising that he had secured other employment.

On the 17^th of November 2015 they received a text from him in relation to a redundancy query. They assured him that work would be available within a few weeks.

They relied on their email of the 3^rd of December 2015 in which he was offered work.

Their arguments were

1. he was not laid off for a period of six weeks within a thirteen week period

2. he did not serve notice in writing using an RP9 form giving the company the opportunity to give counter notice

3. he requested his P45 stating he had alternative employment and he was offered work on a number of occasions and that the role of crane operator has not been made redundant and remains within the company.

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 all the evidence both written and oral in that has been provided to me.

There are difficulties in this case in the lack of documentation.

Section 11 (1) of the Redundancy Payments Acts 1967 to 2007 deals with lay-off.

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.

Having heard the evidence of both sides, I am satisfied that the situation the Complainant found himself in was a period of lay off.

The right to a redundancy payment is set out in Section 12 of the Redundancy Payments Act 1967 as amended.

12—(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 redundancy payment in respect of lay-off or short-time.

(2) An employee who has given a notice of intention to claim shall not be entitled to redundancy payment in pursuance of that notice unless within a period of one month from the date of that notice, or, where the matter has been referred to the Appeals Tribunal, within one month from the date of notification to the employee of the Tribunal's decision, he duly terminates his contract of employment by giving the notice required by that contract or, if no notice is so required, by giving to his employer not less than one week's notice in writing of the employee's intention to terminate that contract, and, before the service of the notice of intention to claim, either—

(a) he has been laid off or kept on short-time for four or more consecutive weeks of which the last before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date, or

(b) he has been laid off or kept on short-time for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date.

The next question I have to answer is whether the Complainant met the time limit in Section 12 (2) (a). This is a mixed question of fact and law.

I find that the Complainant has the requisite four week lay off period between the 23^rd October 2015 and the 20^th November 2015.

It is a fundamental requirement of subsection 12 (1) (b) that the employee gives to his employer notice in writing.

I find that the Complainant did so by email on the 4^th December 2015.

Under Section 13 of the Redundancy Payments Act 1967 as amended the employer had the right to give counter notice.

Right of employer to give counter-notice.

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.

There is no requirement for the employer or the employee to use the form RP9 though it would be preferable if it was used to avoid any disputes or misunderstandings as to what the intention of the parties is or was.

I accept that the Complainant did request a redundancy payment on four occasions during his lay off period, namely on the 23^rd October 2015, 13^th November 2015, 4^th December 2015 and 26^th February 2016.

It appears to me that the Respondent did not treat the Complainant’s requests for redundancy seriously until after his email of the 26^th of February 2016 and the Respondent replied some two months later explaining its position.

At no stage did the Respondent following the 4^th of December 2015 give counter notice to the Complainant with thirteen weeks work. There was an offer of two to three weeks work in a different province to which the Complainant worked in. I do not accept that this is suitable alternative work and it did not meet the requirements under the Act to defend a claim for a redundancy payment.

Therefore, I find that the Claimant is entitled to a redundancy lump payment under the Redundancy Payments Acts based on the following information:

• Date of the commencement 9^th of January 2012
• Date of termination 11^th December 2015
• Layoff periods “22^nd of August 2015 to 19^th of September 2015

23^rd of October 2015 to 11^th December 2015”

• Wage ceiling €600.

This award is made subject to the Complainant being in insurable employment during the relevant time.

Dated:   30^th June 2017