ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010379
Parties:
| Complainant | Respondent |
Anonymised Parties | A maintenance employee | A power plant service provider |
Complaint(s):
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-00013742-001 | 05/09/2017 |
Date of Adjudication Hearing: 16/02/2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints 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 started working for the Respondent on the 15th of June 2009.
He was outsourced by the Respondent to work in a power plant. He worked 39 hours a week and his average weekly wage was €819.00.
In 2016 the Respondent lost its contract with the power plant and the Complainant’s hours were cut.
All communication with the Respondent was over the phone with the administration office. The Complainant never received instructions or advices in writing and did not have a contract of employment.
In 2016 in week 32 the Complainant was laid off until week 41.
The Complainant claimed social welfare for this time as he was not being paid by the Respondent.
He was provided with work in weeks 41, 42 (part time) and 43. He was laid off again for weeks 44 and 45. |
Summary of Complainant’s Case:
The Complainant gave evidence that he made contact with the administration office in week 46. He was asked over the phone to go to another power station at the opposite end of the country for six weeks.
The Complainant advised the administration office that his mother was dying and that he was looking after her and it wasn’t possible for him to consider such work. The Respondent stated that they would supply accommodation for him. They said they had no other work for him.
None of this information was provided in writing to the Complainant.
The Complainant stated that he sent the administration office forms he received from Social Welfare. These were signed and returned to him. Suddenly and out of the blue in December 2016 he received his P45. It stated the date of cessation was the 14th of November 2016. He had not looked for the P45. He had no reason to do so.
He made contact with the Respondent many times by phone and sent them an email looking for his redundancy payment.
He was advised by the administration officer that the in-house accountant would look into it.
His evidence was that he never requested his P45. He stated that he was very happy while employed in the local power plant. That type of work suited him. He was a part time farmer. He was never given an option of alternative employment on a local basis.
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Summary of Respondent’s Case:
The Respondent’s case was that they didn’t make the Complainant redundant.
They agreed that it wasn’t clear when work would be made available but that they had made him an offer to go to another site they were working on in Dublin for six weeks in November 2016. They had offered to supply him accommodation.
Their administration officer advised them that the Complainant had asked for his P45.
Their position was that they had not made him redundant. They had offered him a job and that his job was still available to him. |
Findings and Conclusions:
I have carefully considered all the evidence both written and oral that has been provided to me.
Having heard the evidence on both sides I note that the Complainant found himself on a period of lay off in September 2016 for 10 weeks.
The right to a redundancy payment is set out in the Redundancy Payments Acts 1967 as amended. Section 7 (1) of the Acts provides:- "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….. Section 7(2) provides that: " ...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 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 carryon that business in the place where the employee was so employed
Dismissal for the purposes of section 7 is set out in section 9 of the 1967 Act, as follows: - "(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- (a)the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or (b)where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or (c)the employee terminates the contract under which he is employed by the employer [...] in circumstances (not falling within subsection(5))such that he is entitled to terminate it by reason of the employer's conduct. "
There is a dispute between the parties as to the circumstances which gave rise to the termination of the Complainant’s employment. The Complainant states that he was furnished with his P45. The Respondent states that he requested his P45.
For there to be a redundancy there must be a dismissal of an employee.
I note that the Respondent had placed the Complainant on a substantial period of lay off in the months leading up to the termination of his employment. I note that the Respondent did not make contact with the Complainant either in person, by phone or correspondence at the time of the issue of the P45.
Having listened to the explanation as to why he would not have requested a P45, I am satisfied that the Complainant would not have requested a P45. |
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’s employment was terminated by the Respondent due to loss of a commercial contract and inability to provide suitable alternative work. I hold that the Complainant is entitled to a redundancy lump sum under the Redundancy Payments Acts based on the following information:
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Dated: 25/07/2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Redundancy. Dismissal in dispute. |