ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00010356

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00013776-001 06/09/2017   Date of Adjudication Hearing: 10/11/2017 Workplace Relations Commission Adjudication Officer: Marian Duffy

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The complainant was employed by the respondent as a sales representative from 8th of November 2010 until his employment terminated on 16th December 2015.   The payment of a redundancy lump sum is in dispute.

Summary of Complainant’s Case:

The complainant said that he was invited to a meeting with the respondent on the 27th of November 2015 and he was told that his job was at risk of redundancy. He was told to reflect on it over the weekend and to think about where he might fit in. On the 1st of December, he had a further meeting with the management of the respondent company and he was advised that his job was redundant and a redundancy package was discussed with him. He was asked to leave immediately and to hand over the company possessions and was informed he would be paid for the following month. On the 4th of December, the complainant received a letter informing him that the consultations about redundancy were suspended and that he was now under investigation into allegations of misconduct.   The complainant was called to a disciplinary hearing and his employment was terminated on the 16th of December 2015. The complainant referred an unfair dismissal complaint to the WRC. The adjudication officer found that the complainant had been unfairly dismissed and awarded compensation. The complainant’s solicitor submitted that he is entitled to a lump sum in respect of his redundancy. The initial notification that his job was at risk of redundancy was given on the 27th of November and it was confirmed when the complainant was notified on 1st of December 2015 that he was dismissed for reasons of redundancy and that he would be paid a month’ notice.  

Summary of Respondent’s Case:

The respondent submitted that in late 2015 the company conducted a review of its operations and concluded that there was insufficient work for the two sales representatives employed in the company. Because the complainant had shorter service than the other sales representative, he was called to an at risk meeting with management on Friday the 27th of November 2015. He was notified of the decision to reduce the sales positions and as a result of this decision, he was informed that he could be declared redundant. A further meeting was arranged with the complainant on Tuesday the 1st of December 2015, as there was no alternative employment available for the complainant he was informed that he would be declared redundant and the necessary paperwork would be organised by the Financial Controller. Following this meeting the company discovered that the complainant had deleted some information from the computer system. The complainant wrote to the company on the 3rd of December regarding the redundancy package. In a letter of the 4th of December 2015, the complainant was informed that the redundancy consultations were suspended until further notice and that there was an investigation being carried out into the unauthorised removal of the company information from the computer system. The complainant was dismissed following an investigation for gross misconduct. The dismissal was referred to the WRC and the Adjudicator found the dismissal unfair and awarded compensation which was reduced by a factor of 50% due to the actions of the complainant. The respondent submitted that the complainant, in accepting the unfair dismissal decision by the adjudicator, is bound by the finding of that decision. In that regard the adjudicator found that the dismissal was unfair and awarded compensation in accordance with section 7 of the Unfair Dismissals Act which was reduced by 50% because of the complainant’s conduct. The adjudicator said that in his opinion neither reinstatement or reengagement were appropriate remedies. Therefore, the company contends that the finding of the Adjudicator was the employment was ended, albeit that it was an unfair dismissal and that any future loss, which must include the loss of possible redundancy payments, was compensated accordingly. The adjudicator had an option to reinstate or re-engage the employee and put the employee in the same position as he would have been had he not been unfairly dismissed. The respondent also submitted that the employer had not made the complainant redundant and the conversations they had with the complainant regarding his position were a consultation process. It was also submitted, that a notice in writing in accordance with Section 17 of the Redundancy Acts must be given by the employer to the employee who is being made redundant, and no notice of the exact date of the redundancy was given to the complainant. Therefore, the claim under the Act must fail. The respondent had not advised the complainant of the date he would be declared redundant nor is there any documentary evidence that there had been a date set for the redundancy. In order for the complainant to rely on the Redundancy Payments Acts, he must establish that on the date of his dismissal he was entitled to be paid redundancy and the facts clearly show he did not have any such entitlement. The letter of the 4th of December 2015 to the complainant clearly states that no date had been set for the redundancy and that further discussions on redundancy were suspended. I was also submitted that the claim for redundancy was referred outside the statutory 52 weeks and the complainant has not shown reasonable cause to extend the period for referring a claim to 104 weeks.    

Findings and Conclusions:

I note that on the 27th of November 2015, the complainant was told his position was at risk and this was confirmed in writing. It is clear that at a meeting on the 1st of December 2015, the complainant was informed that his position was redundant. He was told to leave the premises immediately and he would be paid for a month and was asked to hand over the company possessions. I am satisfied from the evidence that the complainant was given a month’s notice and was notified that his position was redundant at the meeting of the 1st of December 2015. However, before the statutory redundancy lump sum was paid, the complainant was dismissed for gross misconduct and a claim for unfair dismissal was made to the WRC. The Adjudicator in ADJ-00002052 found the decision was unfair and awarded compensation for unfair dismissal.   Section 14 of the Redundancy Acts provides: “ an employee who has been dismissed shall not be entitled to redundancy payment if his employer, being entitled to terminate that employee’s contract of employment without notice by reason of the employee’s conduct, terminates the contract because of the employee’s conduct— (a) without notice, (b) by giving shorter notice than that which, in the absence of such conduct, the employer would be required to give to terminate the contract, or (c) by giving notice (other than such notice as is mentioned in subparagraph (b)) which includes, or is accompanied by, a statement in writing that the employer would, by reason of such conduct, be entitled to terminate the contract without notice.” The finding of the Adjudicator determined that the respondent was not entitled to dismiss for reasons of conduct as per S 14 above.     The matter for decision now is whether the complainant is entitled to a statutory redundancy payment given that he has already been compensated for unfair dismissal. The complainant would have been entitled to his statutory redundancy payment but for the dismissal for misconduct. That dismissal was found to be unfair, it follows therefore, that the complainant would have been dismissed for reasons of redundancy. Failure by the respondent to serve the statutory notices under Section 17 does not disqualify the complainant from a redundancy payment given the favourable finding. I was referred to two decisions of the EAT concerning whether an employee can claim both a redundancy and unfair dismissal. In UD114/2012 where the Tribunal held that the employee was unfairly dismissed, compensated him for unfair dismissal for six months and awarded him his statutory lump sum on the liquidation of the company six months later. In making my decision, I have also applied the reasoning in the Labour Court decision in an unfair dismissal claim in the case of Mount Congreave Estate Ltd and Dean O’Neill DET NO. UDD1741. The Court found that the complainant was unfairly dismissed and awarded compensation for the financial loss and also awarded the complainant his statutory redundancy payment. Therefore, I am satisfied that the complainant is entitled to his statutory redundancy payments. The respondent also submitted that the claim for redundancy was submitted outside the statutory 52 weeks time limit for referring a claim. Section 24 of the Redundancy Payments Acts as amended provides that: “Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of fifty two weeks (as amended) beginning on the date of the dismissal or the date of the termination of the employment – (a)    The payment has been agreed and paid, or (b)    the employee has made a claim for payment by notice in writing given to the employer, or (c)     a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Tribunal under section 39.” Section 12(2A) of the 1971 Act provides that: “Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of the termination of the employment, the Tribunal, if it satisfied that the employee would have been entitled to the lump sum and that the failure was due to reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.” I note that the complainant wrote to the respondent on the 3rd of December 2015 and the 7th of December 2015 seeking his redundancy package. In response, the respondent said that the redundancy was suspended until further notice pending the outcome of the disciplinary investigation. The complainant’s employment terminated on the 1st of December 2015 and he was dismissed for reasons of gross misconduct on the 16th of December. I am satisfied, that the above mentioned letters from the complainant seeking his redundancy complies with Section 24(b) cited above. The complainant’s entitlement to redundancy was in dispute until the Adjudicator found that the dismissal was unfair by Decision ADJ-00002052 dated 8th of May 2017 and the claim for redundancy was referred on the 6th of September 2017. I am satisfied that the claim for redundancy was made by the complainant to the employer within the 52 weeks specified in the Act. In the alternative, I am satisfied that “reasonable cause” has been established and I am extending the period for referring the claim for redundancy to 104 weeks, on the basis that the respondent had already decided to make the complainant redundant and before the dismissal for gross misconduct occurred and which was found to be unfair by the Adjudicator. If the complaint for unfair dismissal failed, the complainant would have no entitlement to redundancy as Section 14 of the Redundancy Acts would have applied.      

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I find that the complainant was dismissed for reasons of redundancy and that he is entitled to a statutory redundancy payment based on the following: Date of Commencement  8th November 2010 Date of Termination 16th December 2015 Gross Pay Weekly €600.00 (being the maximum under the Act) Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts. I order the respondent to pay the complainant his statutory entitlements as per the terms of the Redundancy Payments Act.          

Dated:   18/01/2018

Workplace Relations Commission Adjudication Officer: Marian Duffy

Key Words: Redundancy, entitlement to both redundancy and compensation for unfair dismissal.