Complainant

Respondent

Anonymised Parties

AQ Senior Technician

An Employer

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-00020511-001

12/07/2018

The complainant commenced work with the respondent on April 23rd 2013 and his employment terminated on August 11th 2017.

He was paid a gross wage of €672.80.

On June 26th 2017 the complainant felt unwell and told his employer that he was experiencing chest pain and may have been having a heart attack.

The respondent was indifferent and told him to continue working.

He did so and essentially managed the business for that day.

The following day he continued to feel unwell and attempted to contact his employer to let him know he was not fit to attend for work.

Later that day, following the intervention of a friend who called to his home, observed his distressed state and called an ambulance, he was admitted to hospital and it was confirmed that he had, in fact suffered a heart attack.

He was visited in hospital by his employer who told him not to worry and that his job was secure.

On July 28th he was served with notice of redundancy which expired on August 11th.

There were five other employees in the business, but he was the only one made redundant. His position was replaced in due course.

There had been no prior mention of the possibility of redundancy.

A preliminary issue arises about whether the complaint was made within the statutory time limits.

The complaint was lodged on April 3rd 2018, some eight months after the event.

The complainant had been seriously ill.

He had stints inserted and was required to undergo an intensive rehabilitation after having been hospitalised and this continued until January 2018. Medical certification was furnished to the effect that the complainant was ‘medically unfit to contemplate any form of litigation’ and that he had not been ‘in a fit state of mind due to emotional upset and anxiety to contemplate proceedings in the 6-7 months following his heart attack.

The respondent did not attend the hearing.

I am satisfied that the respondent had been properly notified of the hearing and engaged in correspondence with the WRC in relation to the complaint on a number of occasions; September 28th , nominating a representative October 3rd , taking the representative off record and seeking a postponement, (which was refused), October 5th re changes in the company ownership and advising that it had ceased trading.

There was final correspondence from a representative on October 17th following the hearing advising that the company had ceased trading on August 11th 2017.

Where a respondent decides for any reason not to attend an adjudication hearing, and where no reasonable explanation is provided for their failure to do so, this will not prevent a hearing proceeding and a decision issuing. To do otherwise, in the case where a respondent decides not to attend would be to hand them a veto over a complainant’s right to a hearing of their complaint.

This would be intolerable.

In this case, any submission the respondent wished to make would have been heard had he attended. It appears that he took unto himself the right to decide that his attendance was not necessary and in so doing deprived himself of the right of a hearing.

Turning to the application for the extension of time the complainant relied on Cementation Skanska v Tom Carroll WTC/03/02.

This case was also the subject of a complaint under the Employment Equality Act 1998 on the grounds that there was a discriminatory dismissal based on the complainant’s disability.

For the reasons full set out I that decision, ADJ 14465 I find that the complaint was made within the time limits and is within jurisdiction.

I upheld the complaint in that case, finding that he had been the subject of a discriminatory dismissal contrary to the Employment Equality Act and I made an award accordingly.

Having done so, and therefore defined the nature of the termination of employment as a discriminatory dismissal it is not open to me to find that it was also a dismissal by reason of redundancy, on the basis of the principle of estoppel, or res judicata.

Accordingly, the complaint is not upheld.

For the reason set out above I do not uphold complaint CA-00020511-001 and it is dismissed.