Complainant

Respondent

Anonymised Parties

An Employee

An Employer

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-00011194-001

08/05/2017

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

CA-00011194-002

08/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011194-004

08/05/2017

The Complainant commenced working with the Respondent on 1 October 2008. He was employed as a general operative in the Respondent's landscaping, gardening and fuel supply business.

The Complainant's complaint is based on the Respondent's alleged failure to pay redundancy when the Complaint was made redundant in December 2016. In addition, the Complainant alleges that he did not receive proof of the Respondent's inability to pay redundancy.

The Complaint is also alleging that he did not receive his statutory minimum period of notice or payment in lieu thereof, on the termination of his employment.

Background:

The Complainant stated that in the early part of December 2016, the Respondent told him and a fellow employee that he was closing down the fuel yard and there would be no work during the wintertime. The Complainant stated that the Respondent never mentioned any official lay-off.

The Complainant stated that, on 20 December 2016, he sent a text to the Respondent seeking his payslip, which he had not received and his holiday pay.

The Complainant stated that he subsequently met the Respondent in a local shop on 24 December 2016. The Complainant stated that during this conversation the Respondent told him that he had closed the business and that he (the Complainant) could collect his P45 whenever it suited him.

In further evidence, the Complainant stated that he met with the Respondent on 5 January 2017 and was provided with his P45. The Complainant stated that he needed to know the reason for his dismissal so that he could claim Social Welfare. According to the Complainant, when he queried the Respondent in this regard, the latter stated the reason for the dismissal was the closing down of the business.

The Complainant stated that the next time he met the Respondent was on 8 April 2017 when he went to the premises to collect some personal items he had left there. The Complainant stated that when the Respondent queried what he was doing there he told him that he had got a new job. In his evidence, the Complainant stated that, while the Respondent had informed him that his colleague had returned to work, he never mentioned anything about the lay-off or the Complainant coming back to work.

Redundancy – CA00011194-001:

The Complainant's legal representative stated that the Respondent was not in compliance with Section 18 (1) of the Redundancy Payments Act 1967 by reason of the fact that he did not give the Complainant a redundancy certificate. In addition, it was alleged that the Respondent failed to pay the Complainant his redundancy lump sum, calculated at €3,497.75, under Section 19 (1) of the same Act.

The Complainant’s P45, which was provided in evidence at the Hearing, shows the date of cessation of employment as 23 December 2016. According to the Complainant, he was not given the option of having reasonable time off work, during working hours, in order to look for new employment or to make arrangements for training for future employment as provided for under Section 7 (1) of the Act.

It was further stated that, while the Complainant did attend the Department of Social Welfare when signing on, as far as he was aware, the Respondent had never completed an RP50 form, as he is obliged to do.

The Complainant further stated that the Respondent had not issued a P45 since he started work there in 2008. It was contended on behalf of the Complainant, that if the Respondent hadn't intended to dismiss him by way of redundancy, there was no need to issue a P45 in January 2017.

It was further contended that the Respondent had numerous opportunities to correct the Complainant's misunderstanding of what had been said to him in relation to the cessation of the business, but he failed to do so.

Minimum Notice – CA00011194-004:

It was claimed on behalf of the Complainant that he was entitled to 4 weeks’ notice under Section 4 (2) (c) of the Minimum Notice and Terms of Employment act, 1973.

The Respondent stated that he engaged in discussion with his two employees in December 2016, and that during these discussions it was agreed that the Complainant and his colleague would take short-term temporary lay-off. The Respondent stated that the lay-offs were for the month of January, February and part of March 2017 and that the employees were to return to the same work and terms of conditions on 20 March 2017.

The Respondent stated that there was no reference to or mention of the business closing and that there was never any intention to close. The Respondent stated that the situation was discussed fully with the two employees and it was agreed that the temporary lay-off was only for short period and that both employees were fully expected to return on the agreed date.

The Respondent further stated in evidence that, in order to facilitate the employees signing on with the Department of Social Protection and claiming their full unemployment benefit during the temporary lay-off period, both were provided with their respective P45s.

According to the Respondent, the other employee returned to work on 20 March 2017 as agreed. However, it was stated that the Complainant did not avail of the opportunity to return to work from the temporary lay-off. It was further contended that the exact same job, with the same terms and conditions, was still available to the Complainant.

The Hearing heard evidence from the Complainant's second employee with regard to the situation pertaining to the employment arrangements in late 2016 and early 2017. The Witness informed the Hearing that, from mid-November and through December 2016, the Respondent had several discussions with both employees because of the business having gone very quiet. According to the Witness, the Respondent informed them that he was introducing a temporary lay-off for the months of January, February and most of March 2017.

The Witness stated that they were informed that their jobs would be available again, once the grass cutting recommenced, in late March/early April. The Witness also stated that the Respondent informed them he would supply them with their P45s so that they could claim Social Welfare during the temporary lay-off. The Witness provided evidence, by way of Department of Social Protection documentation, supporting his contribution in this regard.

In further evidence, the Witness stated that he returned to work for the Respondent as agreed at the end of March 2017. He stated that, towards the end of the temporary lay-off period, he met the Complainant and, during discussions in relation to returning to work, the latter informed him that he would not be doing any work until May 2017.

Redundancy – CA00011194-001/002:

In response to the Complainant's contention that he was dismissed by way of redundancy, the Respondent refuted the allegation. He stated that the Complainant was not dismissed but was on a short-term, temporary lay-off. It was further stated that, at the end of this period of lay-off, employment on the same terms and conditions was available to the Complainant, if he wished to return.

The Respondent opened in evidence, at the hearing, a letter dated 10 May 2017, which set out the facts as he saw them and also contained the continuing offer of employment should the Complainant wish to resume his position.

The Complainant's complaint relates to his contention that, in a context where the Respondent informed him he was closing the business and subsequently issued him with a P45, he is entitled to a redundancy payment as a result of the termination of his employment.

Section 7 (1) of the Redundancy Payments Act, 1967, states that:

"An employee, if he is dismissed by his employer by reason of redundancy or is laid off are kept on short time for the minimum period, shall, subject to this Act, be entitled to the payment of monies which shall be known as redundancy payment"

The provisions of subsection (1), as set out above, are further clarified in subsections (2) and (3) of Section 7, as follows:

Subsection 2:

"For the purposes of subsection (1), an employee who was 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 for which the employee was employed with him, or has ceased or intends to cease to carry on the business in the place where the employee was so employed, or

(b) the fact that the requirements that business for employees to carry out work of a particular kind, or for the 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."

Subsection 3:

"For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short time for the minimum period if he has been laid off or kept on short time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of 13 consecutive weeks."

In the context of the above provisions of the Redundancy Payment Act, 1967, I considered the evidence adduced in relation to the Complainant's complaint and the Respondent's responses thereto.

In his evidence, the Complainant strongly contends that he was informed by the Respondent that he was closing down the business. The Complainant further stated in evidence that the Respondent never mentioned temporary lay-off.

In response, the Respondent was equally strong in his contention that he never intended to cease trading. He stated that he informed the Respondent and the other employee that he had no work for them over the winter months but would be recommencing once the grass cutting season started again in March or April.

It is unclear whether there is a direct conflict in the evidence presented by the parties or whether the differences in the respective positions arises from a misunderstanding of the situation, particularly by the Complainant. Having carefully reviewed the evidence presented, particularly that given by the Witness, who was the Complainant's sole co-worker, I am of the view that the issues at the heart of this complaint arose as a result of poor communication and/or misunderstanding of the circumstances in the business in late 2016/early 2017 and their impact on the Respondent's decision with regard to the business.

I am satisfied, based on the evidence presented, that the Respondent was not ceasing trading but was, as a result of the diminished level of work over the winter months, putting his two employees on temporary lay-off for a period of 2/3 months. This view is based on a number of factors.

Firstly, in his direct evidence, the Complainant states that, in the early part of December 2016, the Respondent told him and his co-worker that he was "closing down the yard and that there would be no work during the winter time". {Emphasis added}. I am satisfied that this statement supports the Respondent's contention that the closure was temporary and that the intention was to recommence after the winter period.

Secondly, the Respondent's intentions, in this regard, were further confirmed by the Witness, whose evidence clearly demonstrates that the lay-offs were temporary, that the Respondent would provide them with their P45s, to facilitate a claim for social welfare, and that their employment will recommence at the start of the grass cutting season in March/April. The Witness provided documentary evidence, in the form of documentation which he supplied to the Department of Social Protection in pursuance of his social welfare claim, at the time.

In addition, the Witness confirmed that he did return to work in the spring of 2017 and recommenced in his previous position. Further, in this regard, the Witness stated that, in a conversation with the Respondent towards the end of the lay-off period, the latter informed him that he would not be returning to work until May 2017.

In this regard, it is further noted, from documentation submitted by the Respondent in evidence, that the Complainant’s position was available to him up to, and for a certain period after, 10 May 2017. Despite this position been clearly communicated to the Complainant he chose not to resume his employment with the Respondent.

Based on all of the above, I am satisfied that it was always the Respondent's intention that the lay-off of the two employees will be temporary and their positions would be available again on commencement of the grass cutting season in spring of 2017.

Notwithstanding the views set out in the previous paragraph, I do acknowledge that the Respondent may have misinterpreted or, at best, may not have fully understood the situation. I am also of the view that, based on the balance of probability, the Respondent may have contributed somewhat to this confusion.

In particular, I note the Complainant's evidence in this regard that, during a casual conversation when the parties met in a shop on 24 December 2016 and again, some days later, when querying the Respondent, as to what he should tell the Department of Social Protection when applying for social welfare benefits, the latter made reference come on both occasions, to "kinda closing down".

It would appear that these comments formed the basis of the Complainant's contention that the Respondent was permanently closing his business and that the staff are being made redundant. While I accept that the Respondent's comments were not as specific and technically accurate as would ideally be expected, in such a situation, I am of the view that they cannot be taken as evidence of the Respondent’s actual intentions in relation to the business.

In this regard, I am more influenced by the conversations referenced by the Complainant which took place in early December 2016. The Complainant stated that, during these conversations, the Respondent made reference to there being no work during the winter time. This evidence was also corroborated, by the Witness, when he set out the Respondent’s intentions in relation to the business.

Consequently, taking all of the above into consideration, I am satisfied that the Respondent was not ceasing his business on any permanent basis. On the contrary, I find that the Respondent was in effect placing his two employees on temporary lay-off for the winter season.

Against the background of the above finding, I next explored the Complainant’s potential entitlements with regard to redundancy, in the context of the temporary lay-off been put in place by the Respondent.

As already quoted earlier, Section 7 (3) the Redundancy Payments Act, 1967, states that an employee who has been laid off for a period of four or more consecutive weeks is entitled to a redundancy payment.

It is clear from the evidence adduced at the Hearing that the period of temporary lay-off in this case amounted to approximately 14 weeks. Based on this evidence, the employees concerned would be entitled to a redundancy payment. However, this would be subject to compliance with the conditions set out in Section 12 (1) of the Act.

Section 12 (1) of the Act states:

"An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short term unless he gives 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."

It is clear from the evidence adduced, that the Complainant never submitted a notice of intention to claim redundancy payment in respect of the lay-off period. While the Complainant's contention that it is the responsibility of the Respondent to fully inform an employee in relation to a redundancy situation is noted, the legislation is clear that it is the responsibility of the employee to give notice in writing of their intention to claim redundancy payment.

Therefore, based on the above, I must find that the Complainant failed to provide the Respondent with the notice of intention to claim redundancy, in the context of the temporary lay-off, and, as a result, does not have an entitlement to the said redundancy payment.

Finally, in relation to the Complainant’s complaints with regard to redundancy, no evidence was presented to suggest that the Respondent was relying on inability to pay as a reason for not paying redundancy. Clearly, in circumstances where the Respondent never intended there to be a redundancy and where the Complainant did not fulfil his requirements to trigger a redundancy payment in the context of a temporary lay-off situation, the issue of inability to pay does not arise.

With regard to his claim under the Minimum Notice and Terms of Employment Act, 1973, I am satisfied that, in a context where the Respondent was being placed on temporary lay-off and where he failed to give notice in writing to the Complainant of his intention to claim a redundancy payment, thereby terminating his contract, the terms of the Act do not apply.

Having carefully considered all the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the respective aspects of the Complainant's complaint as follows:

Redundancy – CA00011194-001/002:

I find that the Complainant's complaints are not well founded and are, therefore, not upheld.

Minimum Notice – CA00011194-004:

In light of the decision in relation to the redundancy complaint, the Complainant's complaint with regard to Minimum Notice is not upheld.

Redundancy

Minimum Notice