RPD181

This is an appeal on behalf of D & T Forkan Construction Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00007846, dated 18 October 2017) under the Redundancy Payments Act 1967 (‘the Act’). The Adjudication Officer had upheld the Complainant’s entitlement to a redundancy payment. The Court heard the appeal in Dublin on 17 January 2018.

There is no dispute between the parties regarding the material facts. Michael Diamond (‘the Complainant’) was employed by the Respondent as a foreman carpenter. He was placed on temporary lay-off on 4 January 2017. Some four weeks later (i.e. on 2 February 2017), and pursuant to section 12(1) of the Act, the Complainant served a duly completed Form RP9 on his employer thereby indicating his intention to claim a redundancy payment. The Respondent subsequently purported to issue the Complaint with a counter-notice, dated 7 March 2017, pursuant to section 13(2) of the Act. Section 13(2) permits an employer who has received a notice from an employee of his intention to claim a redundancy payment in a lay-off situation to serve on that employee a counter-notice within seven days of receipt of the original notice. In this case, that counter-notice - to be effective - should, therefore, have been served by the Respondent on the Complainant no later than 10 February 2017. Furthermore, the Respondent was unable, as it transpired, to provide the Complainant with thirteen weeks’ continuous full-time work commencing no later than four weeks from the date of the Complainant’s notice.

The Law

The relevant statutory provisions are found in sections 11 to 13 of the Act. They provide:

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.

• (a) for any week an employee's remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,
  (b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do,
  (c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

12. Right to redundancy payment by reason of lay-off or short-time

(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.

13. Right of employer to give counter-notice

(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.
(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.
(4) For the purposes of section 12 and for the purposes of subsection (3)—

• (a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;
  (b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

Decision

The Respondent submitted that the Court should set aside the decision of the Adjudication Officer as it believes that the Complainant was not interested in returning to work for the Respondent following his period of lay-off and in fact declined to accept formal offers of work made to him on 6 June 2017 and again on 1 August 2017. These are not matters which can be taken into account by the Court in making its decision in a claim such as this. The Complainant has fulfilled the requirements specified in the aforementioned sections of the Act; the Respondent did not do so. In all the circumstances, therefore, and having regard to the strict wording of sections 11 to 13 of the Act, the Court is obliged to affirm the Adjudication Officer’s decision in this case. It has no discretion to do otherwise.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
2nd February 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.