Complainant

Respondent

Anonymised Parties

An Operative

A Furniture Producer

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-00016133-001

05/12/2017

The Complainant was employed with the Respondent from 4th February 2002 until 11th September 2017. She was paid €370 weekly gross and worked 40 hours. The Complainant referred a complaint to the Workplace Relations Commission on 5th December 2017 alleging she had not been paid her redundancy entitlements. The Respondent rejects the claim.

The Complainant submits that she was informed on 8th September 2017 that she would be temporarily laid off work as of 11th September 2017. As it appeared that the lay-off was going to be permanent, four weeks later she applied for redundancy using Form RP9. In November 2017 she inquired with the Respondent about her claim and was informed that it was being processed. On 20th November 2017 she was informed by the Respondent that the Respondent’s accountant had a problem with her claim in that her work contract ended on 12th June 2017 when she reached the age of 65. She was not notified on 12th June 2017 that this was an issue and she worked on until September 2017 when she was laid off. In other words, the Complainant submits that her age was not an issue until the redundancy situation came to light in November 2017. The Complainant is one of five employees with claims for redundancy but she is the only one being refused. The Complainant submits that she did not receive notice of redundancy. The Complainant submits that at no stage has the Respondent informed her that her contract was to be terminated.

The Respondent does not dispute the sequence of events as presented by the Complainant. He submits that due to the nature of the business one part of the operation performed very badly due to lesser demand and five employees in total were let go. He submits that the Complainant’s contract provides that the normal retirement age is 65. The Complainant worked past the normal retirement age and the Respondent was advised by his accountant that he is not under obligation to pay redundancy in these circumstances.

The Respondent gave written notice of temporary lay-off using Form RP9 to the Complainant on the 8th September 2017. Following four consecutive weeks of lay-off the Complainant applied for redundancy. There was no dispute between the parties that a genuine redundancy situation arose.

I note the Respondent’s assertion that the Complainant’s contract stipulates that the normal retirement age is 65. However, I note also that the Handbook addresses in detail termination of employment due to retirement. It states that “The normal retirement age is 65, and it is our policy for employees to retire at the end of the week in which their 65th birthday falls. In certain circumstance consideration may be given to fresh employment being offered to you after retirement. Such offers will be totally at the discretion of your Supervisor/manager and will be on a fixed terms basis.”

The Complainant reached the age of 65 on 12th June 2017. There was no indication that the Respondent intends to terminate her contract by way of retirement and no fixed-term contract was offered to her. At the hearing the Respondent confirmed that he believed that the Complainant has at least another year to work but has never examined the matter. The Complainant continued to work for the Respondent until September 2017 when the matter of redundancies arose.

Section 7(1)(b) of the Redundancy Payments Act 1967-2014 states as follows: “An employee, if he is dismissed by his employer by reason of redundancy …shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as a redundancy payment provided – …(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts 1952 – 1966 immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.”

Section 7(2)(a) of the Act states: “For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes 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, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Taking into consideration the evidence available to me I find that the Respondent has reduced the workforce due to a lesser demand. It follows that the Complainant was dismissed by reason of redundancy.

Based on the evidence presented in the Complaint Form and at the hearing, I find that the Complainant is entitled to a statutory redundancy lump sum payment calculated as per the following criteria:

Date of commencement: 4th February 2002

Date of termination: 11th September 2017

Gross weekly pay: €370

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

Redundancy, Retirement age