Complainant

Respondent

Anonymised Parties

Fitter

Motor Company

Representatives

Teresa White CIS - Representative

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-00007215-001

27/09/2016

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

CA-00007215-002

27/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00007215-003

27/09/2016

The Complainant was employer as a fitter from the 4^th January 2000 to 21^st September 2015. He alleges that he was not paid his redundancy entitlements in accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014. He filed a complaint with the Workplace Relations Commission on the 27 September 2016.

The Complainant worked for the Respondent from the 4^th of January 2000 until the 21^st September 2015. He worked full-time until December 2012 when he was put on a three day week which he always complained about. He covered full time cover for different weeks in 2013 and 2014, 1^st July – 9^th August 2013 and two weeks in 2014. On the 4^th of May 2015 the Complainant was out on sick leave until September 2015. He sent in a final cert and letter dated the 14^th of September 2015 indicating a return to work date of the 21^st September 2015. The Respondent then put the Complainant on a temporary layoff.

Further to the temporary layoff letter of the 16 September, the layoff continued on a week by week basis. On the 21^st October 2015, the Respondent confirmed that full time work was not available for a minimum of 16 weeks. On the 22^nd October 2015 the Complainant sent a letter and an RP9 to the Respondent. Further correspondence from the Complainant was sent in November 2015 with a RP77 and an RP50. On the 25^th January 2016 a further letter was issued from the Complainant about his redundancy. On the 1^st June 2016, CIS sent a letter to the Respondent. This was replied to on the 15^th of June with a completed paper form of an RP50. This was forwarded to Redundancy payments section on the 21^st of June 2016. There was further correspondence with the Respondent in relation to evidence of inability to pay from Redundancy payments section. Such evidence was not produced at this time. On the 27^th of September CIS wrote to the Respondent informing him that a claim had been made to the WRC.

The Complainant is entitled to his redundancy entitlements in line with Section 7(1-3).

Reduced Hours and short-time work

When an employee is made redundant after working reduced hours for more than a year, payment will be calculated depending on whether or not the employee accepted being on reduced hours. If an employee fully accepted the reduced working hours as a normal week and never asked to return to full-time work, then the redundancy payment will be based on the Gross pay for the reduced working hours. If, on the other hand an employee never accepted the reduced working hours as normal hours and continually asked to be put back on full-time working, then the payment will be based on normal weekly earnings.

The Complainant contends that he never accepted the reduced working hours and had corresponded with the Respondent in writing to this effect.

He had numerous conversations where he stated that the Respondent told him that this was only a temporary situation and he would increase his full-time hours back to normal working. The Respondent signed the RP50 based on full-time working hours and had corresponded with the Complainant in writing to that effect.

The Respondent’s representative stated that she fully accepts that the Complainant has an entitlement to his redundancy payments, however the business is not in a position to pay him the redundancy payments as it is barely surviving. She stated that she will submit financial statements from their accountant for the years ending 31 December 2015 and the year ending 31 December 2016.

The Respondent submitted financial accounts from their Registered Auditors and Accountant for years ending 31 December 2015 and 31 December 2016. These accounts clearly show that the business now only generates a net income to cover personal commitments including personal taxation and the business has not got the capacity to cover redundancy payments.

Based on the evidence presented at the hearing, I find that the claim for redundancy payment by the Complainant is upheld.

The calculation for the award of redundancy is based on the following information:

Date of commencement: 4^th January 2000

Date of termination: 21^st September 2015

Gross weekly: €720.60

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

PLEASE NOTE:

The following complaints have been withdrawn by the Complainant – CA-00007215-002 and CA-00007215-003