RPD1812

On 27 November 2017 the Complainant made a complaint to the Workplace Relations Commission under Section 39 of the Redundancy Payments Act 1967. On 14 June 2018 the adjudication officer delivered the following decision:

“The Complainant did not arrive at the hearing venue at the allocated time. I am satisfied having considered the file that the Complainant was notified by way of a letter to his address of the hearing date. The Complainant has not subsequently communicated with the WRC. In the circumstances, I strike out this matter for the want of being pursued by the Complainant.”

The Complainant appealed against that decision to this Court on 9 July 2018. The case came on for hearing before this Court on 21 August 2018.

Background

The Respondent operates a hotel on the outskirts of Dublin. The Respondent employed the Complainant as a Refit Carpenter on a series of fixed term contracts of employment.

Details of the Contracts of Employment

The Complainant’s first fixed term contract of employment states that it commenced on 16 June 2015 and was scheduled to terminate on 16 December 2015. However, the contract also states that the Complainant’s continuous employment commenced on 12 November 2014.

By letter dated 28 January the Respondent extended the Complainant’s fixed term contract of employment until 31 March 2016.

By letter dated 23 May 2016 the Respondent further extended the complainant’s contract of employment until 23 May 2017.

Finally by letter dated 17 May the Respondent further extended the Complainant’s employment by way of a further fixed term contract of employment that terminated on 31 October 2017.

Termination of Employment

When his employment terminated on 31 October the Respondent advised the Complainant that as a fixed term worker he did not qualify for redundancy pay within the meaning of the 1967 Act.

Complainant’s Case

The Complainant submits that, on the basis of his service with the Respondent, he has an entitlement to redundancy pay within the meaning of the Redundancy Payments Act 1967. He submits that the fixed term nature of his employment does not disentitle him from qualifying for redundancy pay under the terms of the Act.

He asks the Court to determine that his complaint is well founded and to direct the Respondent to pay him Redundancy Pay in accordance with his statutory entitlement.

Respondent’s Case

The Respondent submits that it employed the Complainant on a series of fixed term contracts of employment. It submits that as the employment was of a fixed term nature the Complainant has no entitlement to Redundancy Pay within the meaning of the Acts.

The Law

Section 7(1) of the Act outlines the general right to redundancy pay. It states: -

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 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 two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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, or 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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Section 9(2) (a) of the Act states:

(2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and—

(a) in a case where the provisions of the contract as renewed or of the new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract, or

Findings of the Court

The evidence discloses that the Complainant worked on a series of uninterrupted fixed term contracts of employment between 04 November 2014 and 31 October 2017. The Court finds no merit in the Respondent’s submissions that the fixed term nature of the Complainant’s successive fixed term contracts of employment dis-qualify him from qualifying for redundancy pay under the 1967 Act. The Court is satisfied that it is settled law that the combined effect of s.7(2)(b) and s.9(1)(a) of the Redundancy Payments Act 1967 makes it clear that the termination of employment in these circumstances constitutes a redundancy that qualifies the Complainant to receive redundancy pay within the meaning of the Act.

Determination

For these reasons the Court finds that the complaint is well founded, sets aside the decision of the Adjudication Officer and orders the Respondent to pay the Complainant statutory redundancy pay in accordance with the provisions of the 1967 Act.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
31 August 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.