Complainant

Respondent

Anonymised Parties

A General Operative

A Construction Company

Representatives

Barron Morris, Solicitors

Christina Ryan B.L.

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-00012962-001

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012962-002

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012962-003

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012962-004

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012962-005

04/08/2017

The complainant commenced work with the respondent on November 22nd 2012. It terminated on May 3rd 2015.

There was considerable confusion on the part of the respondent about the complainant’s pay arrangements. However, it appears he was paid €600 per week for a forty hour week.

Complaint CA-00012962-005, which was one of the complaints under the Organisation of Working Time Act, was withdrawn at the hearing.

The complainant says that his employment terminated by reason of redundancy but that he did not receive any redundancy payment.

There had been a temporary lay off in December 2016 which was to last three to four weeks but this continued. There was occasional contact from the respondent about the possibility of renewed work but nothing materialised.

There had been no previous lay off which endured for as long as that between December 2016 and March 2017 when the complainant was advised that work would be coming on stream.

He says he understood that the lay-off period would only be three to four weeks. He accepts that he was offered work at that stage.

He also says he was not a premium for working on a Sunday, that he was owed annual and public holidays (two complaints).

Complaint CA-00012962-001 Redundancy

The respondent said that the complainant was paid a ‘daily rate’ of €110.00 which, it was claimed, included holiday pay. This was a net payment to the complainant.

A premium of €165 was paid for Saturday working; and €220 for Sundays.

Holiday pay for the three categories was respectively €8.80, €13.20 and €17.60.

In respect of the lay off period in December 2016 this was a case if there being no work. Some work become available in January and the complainant did work for two days.

Around February 24th the respondent advised that work was coming on stream and that he would be re-employed. However, the complainant said that he had arranged holidays and would make contact on his return.

The complainant wrote on March 30th seeking work or confirmation of redundancy but the following day the respondent secured a contract and wrote to the complainant offering him work with effect from April 10th.

The new contract imposed a requirement that the respondent provide updated employee compliance records such as contracts of employment, health and safety statements etc.

The respondent understood that the complainant would be returning to work on April 10th but on April 7th the complainant made contact to say he had not received promised correspondence and there followed a meeting between the parties at which the correspondence was handed over. The respondent understood at that stage that the complainant would attend for work on April 10th.

Therefore, at this stage there was no redundancy situation.

The complainant also indicated later on that same day; April 7th that he would not sign the contract which had been drafted, and which the respondent saw as no more than a reduction to writing of the established arrangements between them.

In fie course the respondent then received correspondence from the Revenue Commissioners which led it to conclude that the complainant would not be attending for work.

The respondent says that it did not terminate the complainant’s employment, and though there was a prolonged period of lay off, (interrupted by a few days’ work) at the point where the complainant actually terminated his relationship with the company work had become available.

At no stage did the complainant serve Form RP 9 on the respondent.

Complaint CA-00012962-002 and 003; Organisation of Working Time Act

The complaint was submitted to the WRC on August 4th 2017.

Therefore, the cognisable period runs from February 4th 2017.

The respondent says that it did not breach any of the complainant’s entitlements in that period as he was on lay off. He did not work any Sundays in this period.

Complaint CA-00012962-004 Terms of Employment Information Act

The respondent accepts that it did not comply with the requirements of the Act to furnish the statutory statement.

Regarding the complaint under the Redundancy Payments Act the key question relates to the nature of the lay-off period.

In the construction sector, such lay offs are not uncommon and the complainant accepts that he had been laid off before, but for a much shorter duration.

However, it appears that he consented to the arrangement.

He remained in contact with the respondent and worked for two days in January. On March 30th, he wrote to the respondent saying that he was seeking a redundancy payment ‘if I am not reinstated in the near future’.

The respondent replied on April 7th (within the ten-day period) indicating that a contract was starting on April 10th and asking him if he would be available for work.

In other words, the respondent met the request of the complainant to clarify the position and did so positively.

Normally, if a lay-off or a short-time situation has continued for four weeks or more, or for six weeks in the previous thirteen weeks, an employee may claim a redundancy lump sum by means of service of Form RP9.

However, the complainant did not do so. Had he done so in compliance with the time limits quoted he may have been entitled to a payment under the Act.

His letter of March 30th is a clear indication that he was available and willing to return to work (or at least that is what it implies).

Why he chose to decline work at that stage looks very odd, and undermines his case fatally.

In summary, the complainant raised no formal objection until his letter of March 30th to which the respondent made a positive response. He declined to accept the available work and therefore cannot claim to have been made redundant at that stage.

His claim for a redundancy payment fails.

I also find that his claims for payment under the Organisation of Working Time Act !997 fall outside the time limits specified in the Act. Nonetheless, the apparent arrangement for paying for holidays on a continuing basis as part of wages, if indeed that is hat happens is unlikely to be in compliance with the Organisation of Working Time Act and while it was not referred for a decision the respondent should take advoice on ensuring his arrangements meet the requirements of the legislation.

Payment in lieu annual leave only arises on termination of the employment.

He succeeds in his complaint under the Terms of Employment (Information) Act, 1994 which was not contested by the respondent.

For the reasons set out above I do not uphold complaints CA-00012962-001, 002 or 003. I uphold CA-00012962 004 and award him €1750.00

Complaint CA-00012962-005 was withdrawn.

Redundancy, annual leave, time limits.