Complainant

Respondent

Anonymised Parties

A Hotel Worker

A Hotel

Representatives

None

None

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-00009950-001

28/02/2017

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

CA-00009951-001

28/02/2017

The complainant worked for the respondent between 2011 and 2016 when the respondent hotel closed. He claims redundancy, which the respondent limited disputes as he does not have the requisite service.

The complainant outlined that his employment started on the 15^th August 2011 and came to an end on the 1^st August 2016. He commented that the manager in attendance at the adjudication and the owner of the respondent hotel were both good managers. He stated that he was only at the adjudication to pursue the redundancy claim and that he had to comply with the time limits for such complaints. He was aware that other employees had received redundancy lump sum payments. He had never been given formal notice of the termination of his employment and this had arisen when the respondent hotel closed.

In respect of his service, the complainant acknowledged that on the 16^th March 2015, he travelled to America. This arose following an incident in the respondent hotel, where he had been accused by another manager of taking a Christmas delivery made to the hotel. The complainant denied the allegation and said that the delivery in question had been made before the start of his shift. He had heard from other staff that this manager was saying that the complainant was responsible. The complainant raised this with the owner and provided her with this explanation. He discussed his option of travelling to America and the owner replied that the complainant could take this as a break and that he would be very welcome back. The complainant said that he did not submit a written resignation. He went to America on the 16^th March 2015 and returned at the end of July 2015. He returned to work with the respondent on the 1^st August 2015. He was not provided with a new contract of employment at this time.

The complainant said that the respondent did not issue him a P45 during the course of 2015 and the first P45 he received was in 2016 when the hotel closed. The owner initially told him that he would be entitled to a redundancy lump sum payment, but later said that he was not entitled.

In reply to the witness for the respondent, the complainant commented that he had returned to Ireland on the 26^th or 27^th July and started back in the respondent hotel within one week. He retained the same staff number and went back to working in the restaurant. At the end of his employment, the witness manager told him that she did not know about his entitlement to redundancy and she would check with the owner. The witness manager then telephoned the complainant to say that the owner had told her that he was entitled. He said that this hearing was the first time he had heard of a P45 being issued in 2012 and he was at a loss.

The witness for the respondent outlined that the complainant had been issued with a P45 on the 13^th March 2015. This had been handed to the complainant by the owner’s daughter. The witness could not comment on the reason given by the complainant for leaving the respondent’s employment at this time and nor could she comment on his conversation with the owner. They held a “going away” party for the complainant and he went to America to try his luck. The complainant also looked for other jobs on his return to Ireland. The complainant then got his job back.

The witness outlined that the respondent had no other written documentation on file other than the 2015 P45. She did not think that the complainant had been provided with a new contract of employment in August 2015.

The witness commented that a P45 had also been issued in 2012, as the complainant had left in May 2012 and returned in September 2012. She was not sure what the reason had been for this break in service.

In reply to the complainant, the witness denied that the complainant had asked her about his redundancy entitlement. He had said that he had more than two years’ service, so she replied that he would be entitled to redundancy. She had forgotten about the complainant’s break in service until she was reminded of this by the owner. The witness then found the P45. She rang the complainant on the 2^nd August 2016 to say that he was not entitled to redundancy.

The complainant lodged two complaints pursuant to the Redundancy Payments Act. The first named the owner trading as the hotel as the respondent. The second named the limited company as the respondent. It is clear that the limited company is the proper respondent and the former employer of the complainant.

CA-00009950-001

This complaint is not well-founded as the complaint is made against an incorrect respondent.

CA-00009951-001

This is a case where the respondent limited company disputes the complainant’s entitlement to a redundancy lump sum payment. There is no dispute that the respondent ceased operating the business the complainant was employed to work in, in this case a hotel-restaurant. What is in dispute is whether the complainant has worked for the respondent for the “requisite period” for the purposes of the Redundancy Payments Acts, as outlined in section 7(5) of the amended Act of 1967.

Schedule 3 of the Act addresses continuous service and reckonable service. It provides that continuity of service shall not be broken for various causes, including “any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in the clauses (i) to (iv) but authorised by the employer.”

This was considered by the High Court in Harte v Telecord Holdings Co. Ltd [1979] 5 JIC 1801. This case involved an employee who worked for the employer between April 1945 and August 1977. The employer claimed that service had been broken by an absence between July 1961 and August 1962 when the employee travelled to America. McWilliam J held “On the evidence furnished to me by the Tribunal it is clear that the cause of the interruption in the Plaintiff's employment was sickness, and the fact that she went to America to recover from it and, while there, took up other employment, does not appear to me to be relevant to the issue unless there is some circumstance from which it should be inferred that she intended to leave the employment permanently. None of the circumstances seem to me to justify such an inference as a matter of probability and the fact that the Plaintiff went to America without making any clear arrangement for a return to work with the Defendant is not, in my opinion sufficient to alter the effect of sickness being the primary cause of the interruption in her period of employment with the Defendant. Had the Plaintiff taken up other employment in Ireland, a heavy onus would have been laid on her to establish that her condition was such that she could not then have returned to work with the Defendant, but the actual circumstances were quite different and do not justify the inference that the Plaintiff's period of employment was not interrupted by reason of sickness.”

Applying this authority to the case, the complainant’s evidence was that he travelled to America and ceased his employment with the respondent with the authorisation of the respondent. His evidence is that he and the owner discussed his leaving and his return to employment. On the balance of probabilities, I find that he stopped working for the respondent in March 2016 with the authorisation of the respondent within the rubric of Schedule 3. I am not persuaded that a P45 was issued to the complainant in 2015 because of the absence of other corroborative documentation regarding the end of his employment and the commencement of a separate period of employment in August 2015. There was also insufficient evidence to support that there had been an earlier break in service in 2012.

When the complainant returned to Ireland, he resumed employment with the respondent without working elsewhere. The witness for the respondent referred to the complainant looking for other work and even if he did, it is the obtaining of other work that indicates the permanent leaving of employment.

Applying Schedule 3 of the Act of 1967 and the case of Harte v Telecord Holdings Co. Ltd to the evidence presented, I find that the complainant has requisite service to be entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act.

CA-00009950-001

I find that this complaint is not well-founded as it is made against the incorrect respondent.

CA-00009951-001

I decide that, pursuant to the Redundancy Payment Acts 1967 - 2014, the complainant is entitled to a redundancy lump sum against the respondent limited company, calculated according to the following criteria:

            Date of start of employment: 15^th August 2011

            Average weekly gross pay: €350

            Date of end of employment: 1^st August 2016

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the respective period of employment.

Redundancy Payments Act 1967, Schedule 3

‘Continuous Service’

Harte v Telecord Holdings Co. Ltd [1979] 5 JIC 1801