Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

Blazej Nowak

Conor O'Toole Dawson O'Toole Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00010090-002

28/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00010090-003

28/02/2017

CA 10090-003

Pursuant to Section 12(f) of the regulations, the employer shall “provide, at the request of the mobile worker, a copy of the record of hours worked by that worker.” The respondent failed to do so.

CA 10090-002.

The complainant states that the respondent unilaterally changed conditions of his employment. He raised an objection to those changes and terminated his contract of employment. On that basis, he is entitled to a lump sum payment. The complainant accepts that he terminated his contract of employment but is relying on Section 9 (1) of the ’67 Act.

CA 10090-03

The claim is statute barred. The complainant resigned his position in April, 2016. The claim was lodge in February, 2017.

CA 10090-002

The complainant filed a claim with the WRC stating that he was constructively dismissed. He resigned his position in April, 2016 because of alleged unilateral changes the respondent made to his pay related terms and conditions of employment. The complainant, in 2016, filed a claim in relation to the alleged breach of Section 5 payment of wages Act. That claim was unsuccessful.

In circumstances where the complainant resigned his position and his pay related claim, which he now relies on to base his complaint pursuant to section 9(1), was unsuccessful, he is not entitled to pursue a claim pursuant to the Redundancy Payments Act.

Redundancy applies to the position and not to the person.

CA 10090-003

Section 18 (4) ( S.I 36/2016) Subject to paragraph (5), a rights commissioner shall not entertain a complaint under this Regulation if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment, whichever is earlier.

The complainant resigned his position on the 26.04.2016. The claim was lodged on the 27.02.2017. The complaint is statute barred.

CA 10090-002

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

S9—(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if-

(c) the employee terminates the contract under which he is employed by the employer without notice in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

The complainant seeks to rely on Section 9 (1) (c) of the Act. He states that the respondent unilaterally changed the terms of his employment specifically in relation to pay. That was the reason behind his decision to terminate his contract of employment. His payment of wages claim, which was heard in 2016, was unsuccessful. In those circumstances he, cannot rely on Section 9(1) ( c).

I find that the complainant’s position was not made redundant. I find that the complainant resigned his position. In those circumstances the claim must fail.