RPD186

The Appellant made his complaint to the Workplace Relations Commission on 23^rdJanuary 2017. The Adjudication Officer decided that the Appellant had not been made redundant.

Background

The Appellant was employed as a Security Officer with the Respondent from June 2006, having transferred to the Respondent under a transfer of undertakings in October 2011. He was a full-time employee with a contractual entitlement to work 78 hours per fortnight at a rate of €10.75 per hour. The Appellant contends that his employment terminated by way of redundancy on or about 21^stDecember 2017.

The Court, in a determination of a preliminary issue dated 8^thMarch 2018, determined that the Appellant was in a period of lay-off for the period following 3^rdNovember 2016.

The Law

The Act at sections 11 to 13 provides in relevant part as follows:

11. Lay-off and short-time

• (1) Where an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
  • (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

    (b) the employer gives notice to that effect to the employee prior to the cessation,

    that cessation of employment shall be regarded for the purposes of this Act as lay-off.

• (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

  (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

  (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

  (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

• (1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

  (2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

The Appellant submitted that the period of lay-off which commenced on 3^rdNovember 2016 continued for a period of more than four weeks. He submitted that on 14^thDecember 2016 he served notice in writing upon the Respondent in accordance with the Act at Section 12(1)(b) of his intention to claim a statutory redundancy payment in respect of lay-off as provided for in the Act. He submitted that on 21^stDecember he wrote to the Respondent to advise that no counter-notice had been received from the Respondent in accordance with the Act at Section 13(1)(b).

The Respondent submitted that efforts had been made from 15^thNovember onwards to contact the Appellant by phone to offer him work but such efforts were unsuccessful because the Appellant was uncontactable.

The Respondent accepted that notice of an intention to claim had been received from the Appellant on or about 14^thDecember 2016. The Respondent also accepted that no counter-notice in writing had issued to the Appellant within the timeframe specified in the Act at Section 13(2) or at all.

Discussion and Conclusions

The Respondent submitted that the Court should take into consideration that efforts had been made to contact the Appellant to offer him work after 3^rdNovember 2011 but that he had been uncontactable. The Respondent submitted that the Appellant had deliberately made himself uncontactable. The Appellant rejected any suggestion that he had made himself uncontactable.

The Act is very clear in respect of the matters before the Court and the Court must address the within appeal strictly in accordance with its provisions.

It is common case that the Appellant has fulfilled the requirements specified in the Act at section 12(1)(b). It is also common case that the Respondent did not fulfil the requirements of the Act at section 13(2).

In all the circumstances therefore, and having regard to sections 11 to 13 of the Act, the Court is obliged to find that the Appellant is entitled, by operation of the Act, to a statutory redundancy payment in accordance with the Act by reason of lay-off.

Determination

The Court determines that the Appellant is, in accordance with the Act at section 12, entitled to a statutory redundancy payment by reason of lay-off. The decision of the Adjudication Officer is accordingly set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
30 April 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.