Complainant

Respondent

Anonymised Parties

A crane driver

A shipping company

Representatives

Karl Gill Citizens Information

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-00011282-001

12/05/2017

The respondent operated a business under licence in Dublin Port until April 2016. Operations ceased when the Port Company rescinded the licence and all the employees were made redundant.

The complainant commenced employment as a crane driver on August 8^th 2002. He became ill in August 2007 and did not return to work prior to the closure of the Dublin Port operation. He claims that he is entitled to be paid a redundancy lump sum in the same manner as the employees who were made redundant when the business closed in April 2016.

It was agreed that prior to his absence the complainant was paid €624 gross per week.

At the start of the hearing, the parties agreed to amend the name of the respondent on the complaint form so that the former employer was correctly identified. A typographical error in the complainant’s name was also corrected.

A preliminary issue arises in respect of the delay submitting this complaint to the WRC.   Section 24 of the Redundancy Payments Act requires that, unless a reasonable cause can be established, a claim must be submitted within 52 weeks from the date of termination of employment. The respondent stated that the business ceased operations during April 2016.   The complaint was submitted on May 12^th 2017. When asked to account for the delay, Mr Gill, on behalf of the complainant, said that the complainant had been in hospital and had not been in a position to deal with this claim within 12 months of the business closure. It is my view that this is a reasonable cause for the delay.

The complainant said that in August 2007, he left work following an argument. He said that he had worked a long shift and he was shouted at by a foreman and there was “a banging in his head.”   He attended his GP and was diagnosed with tinnitus. He sent in medical certs for two or three weeks but then stopped, presumably around September 2007.

According to a letter from his GP which was produced at the hearing, in January 2014 the complainant was diagnosed with cancer and over the last few years he has undergone treatment including surgery. Medical evidence was produced which showed that he was referred for a review in St James’ Hospital in February 2017. He was in hospital in April 2017 and he met a former work colleague who told him that the company had closed a year previously and that the employees had been made redundant.    

The complainant said that he did not resign and that his absence was due to illness. As the business has ceased operations, he claims that he is entitled to a redundancy payment.

On his behalf, Karl Gill of the Citizens Information Service said that the complainant did not send regular medical certificates to his employer because, due to the ongoing nature of his illness, he is in receipt of disability benefit and is required to submit certs only twice a year to the Department of Social Protection.

He said that he has not worked for any other company since his departure in August 2007.  

On behalf of the respondent, the company secretary attended the hearing, accompanied by a manager who was a foreman in 2007. The manager said that the complainant walked out following a disagreement with him. The complainant’s final payslip which was produced at the hearing shows that his last day at work was during the week ending on Thursday, August 16^th 2007.

The respondent’s submission states that, following his departure, the complainant sent in two or three medical certs for tinnitus, and from then on, there was no further contact. The submission states that the managing director (now retired) tried to contact the complainant, but did not succeed.

A letter sent to the complainant by the managing director on July 15^th 2008 states:

“Dear Sir,

“It is almost a year since we have had any contact from you or received any correspondence explaining your absence from work.

“If, by the end of the 31^st of July 2008, we still have received no written reply, we shall assume that you are resigning from your position with….(the respondent company).”

“If your response is in the form of medical certificates, we would require same to cover period of your absence.”

The complainant could not say if he replied to this letter. On the respondent’s side, there was no evidence that a reply had been received.

The respondent’s position is that by “walking out,” not keeping in touch and not sending in medical certs, the complainant voluntarily resigned. On this basis, the respondent’s view is that he is not entitled to a redundancy payment.

The respondent’s written submission states that a P45 was not issued on the basis that the complainant “might return to work.”

Findings

From the written submissions and the representations made by both parties at the hearing, the facts are as follows:

In August 2007, the complainant left his workplace following an argument.   He submitted medical certs stating that he was suffering from tinnitus and, after sending in certs for three weeks, he did not make any further contact;

In July 2008, almost a year after his last day at work, the managing director sent him a letter and asked him to get in touch. There is no evidence that he replied to the letter;

The company assumed that as he did not reply, he had resigned;

He was not issued with a P45, o the basis that he might return;

More than eight years after his last day at work, the business closed down;

A year later, the complainant heard that the operation had closed and he submitted a complaint to the WRC under the Redundancy Payments Act.

Conclusions

In general, an employee ceases to be an employee when he or she is dismissed or resigns. To reach a decision on this matter, I have to determine what the status of the complainant was when the operation ceased in 2016. Was his service continuous from the date that he went sick in 2007?   Was he an employee of the respondent when the operation ceased trading, and if so, does he remain an employee?

A definition of continuous service is set out at Section 4 of Schedule 3 of the Redundancy Payments Act:

“…employment shall be taken to be continuous unless it is terminated by dismissal or by the employee’s voluntarily leaving the employment.” Section 5 of the Schedule provides that “continuity of employment shall not be broken” by any period of sickness.

In this case, there was no dismissal, and the resignation is somewhat intangible. For a resignation to have effect, it must be initiated by the employee, not by the employer. At the hearing, the complainant said that he didn’t resign.

From the letter sent by the managing director in 2008, it appears that he was placing the resolution of this long-term absence problem at the door of the employee, when it properly belonged with the employer. It’s clear that the managing director wanted to find out if the complainant intended to return to work, if he was still sick, or if he intended to resign. Rather than saying “we will assume that you are resigning,” the complainant should have been informed that, if he didn’t get in touch and explain his absence, his employment would be terminated.

The findings in the High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184 provide for precisely this outcome. Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. Finding in favour of the appellant (the employer in this case) in the High Court, Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

The judge in this case makes it clear that the onus is on the employer to follow certain procedures when contemplating a dismissal for incapacity.   Although we are not dealing with a dismissal here, the findings demonstrate that, in the case of long-term absence, the responsibility for staying in touch rests with the employer and, where procedures are followed, dismissal on the grounds of incapacity may be found to be not unfair.

It is clear that in the case on which I am required to adjudicate, the complainant was not dismissed. There is no evidence that he resigned and it is my view that he was an employee when the operation ceased in April 2016. It follows therefore that, as he was not dismissed and did not resign, he is currently an employee of the respondent company.

Section 7 of the above Act sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed,”

As the complainant’s employer has ceased operations in the place where he was employed, his job has become redundant. I decide that the respondent should engage with the complainant to effect the termination of his employment by reason of redundancy and should pay the appropriate redundancy lump sum taking account of the employee’s continuous service and reckonable service in accordance with the definitions set out in Schedule 3 of the Redundancy Payments Act 1967 - 2014.

Redundancy, sickness absence