ADJ-00005902

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005902

Parties: 

Complaint for Resolution:

Date of Adjudication Hearing: 21/03/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 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. 

Background:

The Complainant lodged a claim seeking a lump sum payment for Redundancy on 21 September, 2016. On 17 October, 2016, the WRC requested that the complainant clarify and insert the date of dismissal on which she proposed to ground her case?

On November 1, 2016, the Union, on behalf of the complainant indicated that the date of dismissal was in dispute between the parties and contended that “the matter falls for determination by the Adjudicator “.

Summary of Complainant’s Case:

The complainant commenced work at Y Cleaning Company on January 1, 1990, she was based on dual sites of a factory base and a water plant .The factory contract transferred to the Respondent cleaning company on 27 January 2012.The complainant submitted that the complainant transferred to the respondent by operation of law .

The complainant received a letter from Y cleaning company date January 4, 2012 which appeared to support that contention.

The complainant was on sick leave at the time of the transfer and was not certified to return to work until September, 2012. She submitted sick certs to both Y cleaning company and the respondent.

The complainant submitted that she was involved in a Disciplinary Appeal hearing with Y Cleaning company in May 2012 .This sought to address her demotion in 2011, prior to her sick leave .

The complainant was not approached by the respondent at the time of the transfer and she asked her Solicitor to contact the respondent, who stated that they had never heard of her. This position continued to be adopted by the respondent.

On 18 August, 2014, the Union wrote to the respondent seeking

1 Confirmation that all the complainants terms and conditions of employment had transferred to the respondent.

2 Query whether the respondent was on notice of the complainant’s loss of supervisor’s allowance, petrol and travel allowance?

The Respondent confirmed that the complainant “is not an employee of the respondent and has never worked here “on November 4, 2014.

The Union, on behalf of the complainant confirmed that the complainant had concluded proceedings against Y Cleaning Company in March 2015.

The complainant lodged an RP 77 form with the respondent, in pursuance of a redundancy payment in August 2016. The company responded by stating that they had no record of the complainant outside a record of long term sick leave .The respondent rejected the claim for redundancy and invited the complainant to engage with them .

On September 1, 2016, the Union sought clarification on the complainants’ employment status with the respondent. They did not receive a response.

The Union sought a lump sum payment for redundancy for the complainant. They contended that the complainant had been denied work post her transfer to the respondent employment.

The Union submitted that the complainant had 27 years experience and the respondent had systematically refused to accept their responsibility under the Transfer of Undertakings Regulations, directly arising from this action, the complainant became redundant.

In response to questions from the Adjudicator, the complainant submitted a range of dates of dismissal for the complainant and requested that the matter be decided on by the Adjudicator.

On the day following the hearing, the complainant made a supplementary submission noting the absence of a written legal submission on the preliminary issue from the respondent .The Union requested that the hearing should be reconvened or documents exchanged on legal submissions. 

Summary of Respondent’s Case:

The Respondent made a preliminary application that the claim was lodged outside the statutory time limits and for that reason lacked jurisdiction before the Workplace Relations Commission .The company sought a preliminary determination on the matter.

The respondent denied that the company had ever received any sick notes, or confirmation of the complainant’s fitness to return to work in September 2012.

The respondent expressed a strong dissatisfaction at the three varied accounts of the submitted date of dismissal and sought a Preliminary direction on time limits. 

Findings and Conclusions:

In this case, the parties agreed that I should consider the question of whether or not the claim under the Acts was lodged within the statutory time limit as provided in the Acts as a preliminary matter.

From the outset of this case, I was struck by the lack of clarity before me on the submitted date of dismissal by the complainant. It was left blank on the complaint form when submitted by the complainant for adjudication.

I was also struck by the position adopted by the respondent, where the company chose not to submit any detail in response to the claim outside a demand for a preliminary determination on time limits. I found that to be in stark contrast to the letter sent to the complainant by the company on August 19, 2016, which sought an engagement with the complainant.

The complainant submitted three dates of dismissal during the course of the hearing. Firstly the complainant relied on the date of transfer of 27 January 2012 as the date of dismissal as this was purported to be the date of transfer of the business of Y Cleaning Company to the respondent. Secondly, the complainant submitted that the date of dismissal was September 2012, when the complainant was deemed fit for work and when she submitted the Final Medical Certificates to both companies.

The case submitted by the Union referred to a TUPE situation that had not preserved the complainant’s employment in 2012.

I asked the parties to take a break to consider the question of statutory time limits in this case and I requested that the complainant submit a clear date of dismissal for me to consider.

The hearing resumed and the Union submitted that the complainant had been on a period of “continuous lay off “from January 2012 and the employment had “never terminated “. The complainant did not have evidence of a RP 9 form as proof of the lay off.

The respondent disputed this by reference to the complainant’s evidence of being fit to return to work in 2012 and her further complaint in 2014.

Given the Union submission on a “failed TUPE” back drop to the claim, I drew the attention of the parties to Section 41(6) of the Workplace Relations Act 2015 and sought comments. None were forthcoming.

The parties agreed that I should move to decision on the preliminary application.

Section 9 of the Redundancy Payments Act, 1967 outlines:

“Date of dismissal”, in relation to an employee, means—

(a) Where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and

( c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires,

Findings:

The question before me is whether the claim for a lump sum redundancy payment is lodged within the statutory time limits? .It is therefore essential to be clear on the alleged date of dismissal.

I have listened to and carefully considered both parties oral submissions on the matter of time limits. In addition , I have considered the complainants’ written submission .

Section 24 :Time-limit on claims for redundancy payment. 

24. — notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) The payment has been agreed and paid, or

(b) The employee has made a claim for the payment by notice in writing given to the employer, or

(c) A question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

A careful analysis of the respondent letter of 19 August 2016 led me to find that the respondent had details of the complainant on file; they understood that the complainant was still on sick leave from 2012. This provides some evidence at least that the complainant transferred employment in accordance with the expectation raised in the January 2012 letter from Y Cleaning Company .I found it curious that the complainant did not engage with the respondent on the two questions asked ?

1 Confirmation of Fitness to resume work

2 Ready to resume work

The complainant told the hearing that she made dual submissions of her final return to work cert in September 2012 but did not advance an explanation on just why she was prevented from going back to work for the respondent .The respondent disputed receiving this note. This was followed by a note from the respondent Hr Manager which disputed the complainant’s employment status with the respondent in November 2014.

Based on the evidence before me, I cannot accept that the complainant was on a period of Lay off from January 2012.

Instead, I have taken some direction from the respondent email, which was not disputed by either party at the hearing. The email was sent to the Union by the respondent on 4 November 2014 at 14.21 hrs and it stated

“ I would like to confirm that ( the complainant ) is not an employee of ( the respondent) and has never worked here “

This appears to have been followed by a communication lull between the parties until the complainant submitted a RP 77( application for redundancy ) form to the respondent during August 2016, some 20 months later. This claim does not appear to have referenced a date of claim either. The claim came before the WRC on 21 September, 2016.

In a recent Labour Court case in Fitzers Catering Ltd V Valerie Daniels RPD 175, the Court held that

“It is well settled that an applicant for an extension of time must both explain the delay and provide a justifiable excuse for the delay “

I was not asked to extend time limits in accordance with Section 24 (2) (A) of the Acts. I was asked to adjudicate on a date of dismissal.

I accept and understand that the complainant has a strong opinion of being “left behind “by the respondent in terms of her employment .However, this was not a case taken under the Transfer of Undertakings Regulations legislation as I sought to address at the hearing by way of reference to Section 41(6) of the Workplace Relations Act 2015. It was a claim taken in pursuance of a lump sum payment on redundancy.

I considered the complainant request for resumption of the hearing and I found that I had given the parties an adequate opportunity to state their case on the day of hearing .

Based on the evidence before me, I must find that the respondent letter of 19 August 2016 has to be taken as the presiding document in this case. It is difficult to see how an employee could remain on the respondent books since a TUPE 2012 without a “ reach out “ process .

On the other hand , I found the respondent very credible on their recollection that they were not in possession of a “ fit for work “ certificate from the complainant since 2012 . The letter of 19 August 2016 breathes life into a previously dormant employment relationship and it crystallises opportunities for the parties .

Based on the facts before me , I cannot establish that a dismissal arose in this case and consequently , a redundancy situation did not arise .

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that a Redundancy situation has not arisen in this case and the claim is not well founded . I advice the parties to re-engage on the invitation extended by the respondent on 19 August , 2016.

Dated:               10 May 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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