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-00012757-001

25/07/2017

The respondent operated a business under licence in Dublin Port until April 2016. Operations ceased when the Port Company rescinded the licence and all the employees were made redundant.

The respondent’s records show that the complainant commenced employment as a labourer on September 23rd 2004. He resigned on April 23rd 2010, but was re-hired in May of that year.   He last worked for the company on April 8th 2012. The following day, he attended Beaumont Hospital due to a problem with his back.   He did not return to work and, at the hearing, he said that he has not worked for any other employer since.

The complainant claims that he is entitled to be paid a redundancy lump sum in the same manner as the employees who were made redundant when the business closed in April 2016.

It was agreed that prior to his absence he was paid €624 gross per week.

When he heard that the business had closed down, the complainant attempted to contact his employer to get a redundancy payment, but was not successful. He then submitted an RP50 to the Department of Social Protection to claim a payment from the Social Insurance Fund. He was advised that as his employer had not signed the RP50, he should submit a claim to the WRC, which he did on July 25th 2017.

A preliminary issue arises in respect of the delay submitting this complaint to the WRC.   Section 24 of the Redundancy Payments Acts 1967-2016 requires that a claim be submitted within 52 weeks from the date of termination of employment. The respondent stated that the business ceased operations on April 29th 2016. The complaint was submitted to the WRC on July 25th 2017.

Section 24 of the 1967 Act (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 52 weeks beginning on the date of dismissal or the date of termination of employment –

a) the payment has been agreed and paid, or

b) the employee has made a claim for the 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 Director General under section 39.”

The complainant submitted a letter from his solicitor dated October 5th 2016, referring to a previous letter which notified the respondent of a claim for a redundancy lump sum. On this basis, I am satisfied that, in accordance with section 24(b) of the Redundancy Payments Act referred to above, the complainant made a claim by notice in writing to his employer within a period of 52 weeks from the date of the business closure.  

The complainant said that in April 2012, he sustained an injury at work and has not worked since.   He is in receipt of a disability allowance from the Department of Social Protection. Following his absence, he sent in medical certificates and the respondent had records of certs submitted up to the first week of August 2012. The complainant said that he stopped sending in certs due to the expense of going to the doctor.

As a result of the injury to his back, the complainant initiated a personal injuries claim and this was concluded to his satisfaction in March 2016. He said that he did not make any effort to contact his employer about returning to work and he said that he would have been unable to do the job that he had been employed to do.

He claims that as he did not resign and he was not issued with a P45, he was therefore not dismissed and he is entitled to be made redundant.

On behalf of the respondent, the company secretary attended the hearing. He gave details of the complainant’s start date, his resignation in April 2010 and the fact that he returned to work with the company the following month.

The company secretary said that the complainant last worked on April 8th 2012, following which he submitted a medical certificate indicating that he attended Beaumont Hospital on April 9th. He then submitted three medical certs for one month each, up to August 2012.

When asked about the fact that a P45 was not issued to the complainant, the respondent said that the work that the company was involved in was often sporadic in nature and many of the employees went away for a time and then returned to work. The company did not have a practice of issuing P45s, as this enabled the employees to resume working as if they had never left. However, in the case of this employee, it was assumed that, as he had been absent for nearly four years and had ceased having any contact with the company, he had voluntarily resigned. On this basis, the respondent’s view is that he is not entitled to a redundancy payment.

Findings

April 8th 2012 was the last day on which the complainant attended work, as the following day, he attended Beaumont Hospital with a pain in his back which he said was due to an injury at work. He submitted some medical certs, but none from early August 2012. When he did not return to work, the company assumed that he had resigned. He was not issued with a P45 and his employment was never formally terminated.

Three years and nine months after his last day at work, the business closed down. Hearing that his former colleagues were made redundant, the complainant applied to the company for a redundancy payment, but got no response. On the advice of the Department of Social Protection, he made a complaint to the WRC under the Redundancy Payments Act.

Conclusions

In general, an employee ceases to be an employee when he or she is dismissed or resigns. To reach a decision on this complaint, I have to determine what the status was of the complainant when the operation ceased in 2016. Was his service continuous from the date that he went sick in 2012? Was he an employee of the respondent when the operation ceased trading, and if so, does he remain an employee?

A definition of continuous service is set out at Section 4 of Schedule 3 of the Redundancy Payments Act:

“…employment shall be taken to be continuous unless it is terminated by dismissal or by the employee’s voluntarily leaving the employment.” Section 5 of the Schedule provides that “continuity of employment shall not be broken” by any period of sickness.

In this case, it appears that the complainant resigned in April 2010, but resumed working for this company about a month. Following his absence due to injury in April 2012, he did not resign and he was not dismissed. Although he was absent for nearly four years, respondent said that he wasn’t issued with a P45 as this was not the practice of this company, due the casual nature of the employment.

When an employee remains absent from work and fails to contact his or her employer over a protracted period and, in the absence of notification from the employee that he or she has resigned, the responsibility for finalising the relationship rests with the employer. Rather than assuming he had resigned, the complainant should have been informed that, if he didn’t get in touch and explain his absence, his employment would be terminated.

The findings in the High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184 provide for precisely this outcome. Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. Finding in favour of the appellant (the employer in this case) in the High Court, Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

The Judge in this case makes it clear that the onus is on the employer to follow certain procedures when contemplating a dismissal for incapacity.   Although we are not dealing with a dismissal here, the findings demonstrate that, in the case of long-term absence, the responsibility for staying in touch rests with the employer and not the employee, and, where procedures are followed, dismissal on the grounds of incapacity may be found to be not unfair.

It is clear that, in the case on which I am required to adjudicate, the complainant was not dismissed. There is no evidence that he resigned and it is my view that he was an employee of the respondent when the operation ceased in April 2016. It follows therefore that, as he was not dismissed and did not resign, he is an employee of the respondent company.

Section 7 of the above Act sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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,”

As the complainant’s employer has ceased operations in the place where he was employed, his job has become redundant. I decide that the respondent should engage with the complainant to effect the termination of his employment by reason of redundancy and should pay the appropriate redundancy lump sum taking account of the employee’s continuous service and reckonable service in accordance with the definitions set out in Schedule 3 of the Redundancy Payments Act 1967 - 2014.

Redundancy, sickness absence