This is a correction order pursuant to Section 39 of the Organisation of Working Time Act 1997 and it should be read in conjunction with the original Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013421
Parties:
| Complainant | Respondent |
Anonymised Parties | Crèche Assistant Manager | A Crèche |
Representatives | Krystian Boino, Hoban Boino Solicitors |
|
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-00017697-001 | 28/Feb/2018 |
Date of Adjudication Hearing: 14/May/2018
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 on the 3rd of October 2006. She worked as an assistant manager in a crèche and was paid €497 per week. She was laid off on the 25th of August 2017 and she is claiming a redundancy lump sum. |
Summary of Complainant’s Case:
The complainant was employed by the respondent on the 3rd of October 2006 and she was laid off on the 25th of August 2017. The respondent notified the complainant in a letter dated the 10th of August 2017, that she was being laid off because the crèche was closing. He was relocating the crèche and he would let her know when she was required to return to work. She emailed the respondent on the 26th of September 2017 and again on the 2nd of October 2017 seeking an update on the lay-off, but she got no reply. The complainant said that after 2 months on lay off without pay she had no option but to apply for redundancy. She served Part B of the RP9 form on the employer in accordance with section 12(1) of the Redundancy Acts on the 24th of October 2017 claiming her entitlement to redundancy. The respondent contacted the complainant after receiving the RP9 seeking a meeting. The complainant agreed to the meeting provided she could be represented by her union but the respondent failed to reply and the meeting never happened. On the 9th of November 2017, the complainant sent an RP 77 to the respondent claiming payment of a redundancy lump. The respondent then had a meeting with the complainant, but she decided given the length of the lay off without any contact from the respondent to continue with her claim for redundancy On the 29th of November 2017 the respondent completed Part C of the RP9 contesting the any liability to pay redundancy to the complainant. The complainant solicitor referred to Section 12 and 13 of the Redundancy Payments 1967 as amended. It was submitted that the respondent was in clear breach of the legislation and the obligations to an employee who has been laid off with no prospect of future employment. I was referred to the Labour Court decision in D & T Forkan Construction Ltd v Michael Diamond RPD181 and to G4S Secure Solutions (Ireland) Ltd V. Krzysztof Stanek RPD186. The Court applied a strict interpretation of the timeframe and obligations set out in Section 11 to 13 of the Acts when an employee is seeking redundancy because of a lay-off. It was submitted that the Labour Court made it clear that any subsequent offers of employment made after the expiry of the 7 days provided to give counter notice in writing cannot be taken into account. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The complainant is claiming redundancy because she was on lay off for over 2 months. The respondent did not attend the hearing. The Act at sections 11 to 13 provides as follows: Section 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.” Section 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. (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.” Section 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.” I note the complainant was served with an RP 9 form on the 10th of August 2017 informing her that she was being put on temporary layoff on the 25th August 2017 because the business was relocating. On the 24th of October 2017, the complainant notified the employer of her intention to claim redundancy and I note that the respondent did not reply until the 17th of November 2017 which is outside the statutory 7 days for replying to the notification. In the D & T Forkan case cited above, I note the Labour Court stated as follows: “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.” I am satisfied that the complainant has fulfilled the requirements of the above section 12 and 13 of the Act but the respondent did not do so. In applying the above jurisprudence of the Labour Court, I am satisfied the complainant qualifies for redundancy. I find therefore, that the complainant’s employment ended for reasons of redundancy following a period of lay off. |
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 ended for reasons of redundancy and that she is entitled to a statutory redundancy payment based on the following: Date of Commencement 3rd October 2006 Date of lay-off 25th August 2017 Date of Part B RP9 24th October 2017 Gross Pay Weekly €497 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 her statutory entitlements as per the terms of the Redundancy Payments Acts 1967 as amended. |
Dated: 31/07/18
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Redundancy, Section 11, 12 & 13 of the Redundancy Payments Acts, layoff, RP9 failure to respond. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013421
Parties:
| Complainant | Respondent |
Anonymised Parties | Crèche Assistant Manager | A Crèche |
Representatives | Krystian Boino, Hoban Boino Solicitors |
|
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-00017697-001 | 28/Feb/2018 |
Date of Adjudication Hearing: 14/May/2018
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 on the 3rd of October 2006. She worked as an assistant manager in a crèche and was paid €497 per week. She was laid off on the 25th of August 2017 and she is claiming a redundancy lump sum. |
Summary of Complainant’s Case:
The complainant was employed by the respondent on the 3rd of October 2006 and she was laid off on the 25th of August 2017. The respondent notified the complainant in a letter dated the 10th of August 2017, that she was being laid off because the crèche was closing. He was relocating the crèche and he would let her know when she was required to return to work. She emailed the respondent on the 26th of September 2017 and again on the 2nd of October 2017 seeking an update on the lay-off, but she got no reply. The complainant said that after 2 months on lay off without pay she had no option but to apply for redundancy. She served Part B of the RP9 form on the employer in accordance with section 12(1) of the Redundancy Acts on the 24th of October 2017 claiming her entitlement to redundancy. The respondent contacted the complainant after receiving the RP9 seeking a meeting. The complainant agreed to the meeting provided she could be represented by her union but the respondent failed to reply and the meeting never happened. On the 9th of November 2017, the complainant sent an RP 77 to the respondent claiming payment of a redundancy lump. The respondent then had a meeting with the complainant, but she decided given the length of the lay off without any contact from the respondent to continue with her claim for redundancy On the 29th of November 2017 the respondent completed Part C of the RP9 contesting the any liability to pay redundancy to the complainant. The complainant solicitor referred to Section 12 and 13 of the Redundancy Payments 1967 as amended. It was submitted that the respondent was in clear breach of the legislation and the obligations to an employee who has been laid off with no prospect of future employment. I was referred to the Labour Court decision in D & T Forkan Construction Ltd v Michael Diamond RPD181 and to G4S Secure Solutions (Ireland) Ltd V. Krzysztof Stanek RPD186. The Court applied a strict interpretation of the timeframe and obligations set out in Section 11 to 13 of the Acts when an employee is seeking redundancy because of a lay-off. It was submitted that the Labour Court made it clear that any subsequent offers of employment made after the expiry of the 7 days provided to give counter notice in writing cannot be taken into account. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The complainant is claiming redundancy because she was on lay off for over 2 months. The respondent did not attend the hearing. The Act at sections 11 to 13 provides as follows: Section 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.” Section 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. (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.” Section 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.” I note the complainant was served with an RP 9 form on the 10th of August 2017 informing her that she was being put on temporary layoff on the 25th August 2017 because the business was relocating. On the 24th of October 2017, the complainant notified the employer of her intention to claim redundancy and I note that the respondent did not reply until the 17th of November 2017 which is outside the statutory 7 days for replying to the notification. In the D & T Forkan case cited above, I note the Labour Court stated as follows: “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.” I am satisfied that the complainant has fulfilled the requirements of the above section 12 and 13 of the Act but the respondent did not do so. In applying the above jurisprudence of the Labour Court, I am satisfied the complainant qualifies for redundancy. I find therefore, that the complainant’s employment ended for reasons of redundancy following a period of lay off. |
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 ended for reasons of redundancy and that she is entitled to a statutory redundancy payment based on the following: Date of Commencement 3rd October 2006 Date of lay-off 25th August 2016 Date of Part B RP9 24th October 2017 Gross Pay Weekly €497 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 her statutory entitlements as per the terms of the Redundancy Payments Acts 1967 as amended. |
Dated: 31/07/18
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Redundancy, Section 11, 12 & 13 of the Redundancy Payments Acts, layoff, RP9 failure to respond. |