ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009917

Complaints:

ActComplaint Reference

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00012902-001   01/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00012902-002   01/08/2017  

Date of Adjudication Hearing: 16/11/2017 Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014andSection 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background:

The Complainant was employed as a Labourer from the 21st September 2013. He submitted a RP77 form on the 21st April 2017 requesting a redundancy lump sum. He was paid €540 gross and worked 39 hours per week. He claims that he did not receive his redundancy payment. He also seeks his entitlement to two weeks’ notice.

Preliminary issue: Claim under the Minimum Notice and Terms of Employment Act, 1973 The Complainant has not included a specific complaint in respect of the above Act in the WRC Complaint Form. However, he has addressed the matter in the statement relating to the claim under the Redundancy Payment Act, 1967 where he specifically referred to the “two weeks notice” he should have been given in saying “I wrote to him [the Respondent] subsequently indicating that I should have been given two weeks notice…” In considering the introduction of a new claim, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent.... must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice." Furthermore, I have noted the judgement of McKechnie J. in the Supreme Court [2016] IESC 40 where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”  Having regard to the foregoing, it is clear that the WRC Complaint Form is not a statutory form. In the present case, I am satisfied that it was clear from the information included in the Complaint Form which the Complainant submitted to the WRC on 1st August, 2017 and which was copied to the Respondent that the Complainant alleges non-payment of the statutory minimum notice by the Respondent. At the hearing the Respondent confirmed that he is aware of the Complainant’s claim in respect of the entitlement to notice.   He did not object to this entitlement and did not object to the claim being introduced. I am satisfied that the Respondent confirmed at the hearing that he was fully aware of the general nature of the claim. I am thus satisfied that the Respondent has been on notice of the claim and as a result the Respondent’s defence of the claim has not been prejudiced. I am satisfied given all of the circumstances of the present case, that the introduction of a new claim does not fundamentally alter the nature of the claim before the hearing. Therefore, I am satisfied that I do have jurisdiction to permit the introduction of a new claim seeking entitlements under the Minimum Notice and Terms of Employment Act, 1973.  

CA-00012902-001 Redundancy Payment Act, 1967

Summary of Complainant’s Case:

The Complainant submits that he was laid off on the 9th September 2016 without notice. His best endeavours to receive some redundancy payment have not been successful. He contacted the Respondent in writing on the 21st April 2017 forwarding form RP77 and informing him that if he does not hear from him within ten days he would have no choice but to take this case to the WRC. The Respondent replied on the 13th May 2017 indicating that he is currently ‘looking into the payment’. The Complainant wrote to him subsequently indicating that he should have been given two weeks’ notice and that his redundancy would amount to more than €4,000. The Complainant submits that he did not hear from the Respondent since. On the 29th May 2017 the Complainant sent a notice with a printed copy of redundancy estimate via the Redundancy Calculator to the Respondent. He has not heard from the Respondent.  

Summary of Respondent’s Case:

The Respondent stated that he fully accepts that the Complainant has an entitlement to his redundancy payments. However, he objects to the method of calculating the redundancy payment, more specifically to the additional sum equivalent to the employee's normal weekly remuneration provided for by the Act. He also stated that the business might not be currently in a financial position to pay him.  

Findings and Conclusions:

There is no dispute as to the primary facts giving rise to this claim. 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 purpose 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 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 employer.” The Complainant informed the Respondent that he is seeking a redundancy lump sum on the 21st April 2017. I note that the Complainant has incorrectly used Form RP77 and not Form RP9 to notify his employer of intention to claim a redundancy lump sum in a lay off situation. However, the Respondent confirmed that a genuine redundancy situation has arisen and there is and will be no work for the Complainant. The Respondent did not dispute the Complainant’s entitlement to the redundancy payment. I find that the Complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Act.  

Decision:   Section 39 of the Redundancy Payments Acts 1967 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the evidence presented at the hearing, I find that the claim for redundancy payment by the Complainant is upheld. The Complainant is entitled to a statutory redundancy lump sum payment calculated as per the following criteria: Date of commencement: 21st September 2013 Date of termination: 21 April 2017 Gross weekly pay: €540 This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.  CA-00012902-002 Minimum Notice and Terms of Employment Act, 1973

Summary of Complainant’s Case:

The Complainant submits that he did not received his statutory minimum notice.

Summary of Respondent’s Case:

The Respondent confirms that no notice was given or payment in lieu made to the Complainant.  

Findings and Conclusions:

The evidence before me confirms that the Complainant started his employment with the Respondent on the 21st September 2013. He was laid off on the 9th September 2018. On the 21st April 2017 the Complainant submitted Form RP77 to the Respondent informing him of his intention to claim a redundancy lump sum. I note that the Complainant used the incorrect form as Form RP9 should have been used to notify the Respondent of his intention to claim a redundancy lump sum in a lay-off situation. Nevertheless, I find that the Complainant terminated his employment by claiming a redundancy payment. An employee who initiates a claim for redundancy following lay-off has no entitlement to notice. He is considered to have voluntarily resigned employment.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. In accordance with Section 4(2) d of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant has resigned his employment and is not entitled to minimum notice. The complaint fails.  

Dated:   14th February 2018 Workplace Relations Commission

Adjudication Officer: Ewa Sobanska

Key Words: Redundancy, minimum notice