ADJ-00004383

Complainant

Respondent

Parties

A Cleaner

A Cleaning Company

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-00006444-001

12/08/2016

The Complainant was employed by the Respondent from an   alleged staring date of 3^rd May 2002. Her employment was never formally terminated. Her last period of unpaid leave commenced   on or about the 16^th October 2016. The time off was clearly by   agreement with the Respondent. Written   evidence was presented from former colleagues of the relaxed practices in the   Respondent regarding time off and extended periods of leave relating to   domestic and maternity issues.

It was her strong contention that she had continuity of employment   (to the closure of the Respondent business on the 31^st May 2016) with   the Respondent for the purposes of the Redundancy Payments Acts, 1967.

The Respondent largely agreed with the Complainant. She   had never been formally terminated, no P45 was ever issued at the time and   her stopping of work in October 2016 was largely in keeping with previous non-working   periods.

The Respondent, who was represented by his Accountant, was   largely seeking clarity on the Redundancy and continuity of Service issues of   the Complainant at the time of the ending of the business on the 31^st   May 2016.

Having   considered Schedule Three of the Redundancy payments Act, 1967 – quoted below   and specifically Sub Section 5 (v) I came to the opinion that the Complainant   had continuity of Service to the ending of the Respondent’s business on the   31st May 2016.

While   the principal Respondent, the Managing Director, was unwell and unable to   physically attend the oral hearing he, at the request of the Adjudication Officer,   later submitted a written statement which largely corroborated the views of   the Complainant. The taking of extended periods of leave, by local agreement,   was a feature of the Respondent’s business.

Accordingly   an entitlement to a Redundancy payment, to be determined by the Regulations   of the Department of Social protection and in particular the regulations   governing the question of Reckonable Service, arises.

Extract from Schedule   Three of the Redundancy payments Act,1967

Continuous Employment

4. [, but for the   purposes of this paragraph ‘dismissal’does not include a dismissal within   the meaning of the Unfair Dismissals Act, 1977, and in respect of which redress   has been awarded under section 7 (1) (a) or 7 (1) (b) of that Act].

F114 [4A. Notwithstanding anything in   paragraph 4 (and anything in clause (b) of the   definition of “date of dismissal”in section 2), the period of notice   due to an employee under section 4(2) (a) of the Minimum Notice and Terms of Employment Act, 1973, but not given   by the employer, shall, where the Tribunal so orders, be allowed as   continuous service for redundancy purposes where, but for the failure of the   employer to comply with the provisions of that Act, the employee would have   qualified for redundancy payment. ]

F115 [5. Where an employee’s period of service has been interrupted by any one of the following —

(a) any period by   reason of—

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the   State,

(v) any cause (other than the voluntary leaving   of the employment concerned by the employee) not mentioned in clauses (i) to   (iv) but authorised by the employer,

Underlined by the Adjudication Officer.