RPD182

This matter comes to the Court as an appeal of a decision of an Adjudication Officer made under the Redundancy Payments Acts, 1967 to 2014 (the Act) in a complaint made by Kryzstov Stanek (the Appellant) against his former employer G4S Secure Solutions (Ireland) Limited (the Respondent) that he was entitled to a redundancy lump sum payment from the Respondent. The Appellant claims that following a period of lay-off he was entitled to and did claim a redundancy payment in respect of lay-off in accordance with the Act at Section 12(1)(b).

The Appellant made his complaint to the Workplace Relations Commission on 23^rdJanuary 2017.

Background

The Appellant was employed as a Security Officer with the Respondent from June 2006, having transferred to the Respondent under a transfer of undertakings in October 2011. He was a full-time employee with a contractual entitlement to work 78 hours per fortnight at a rate of €10.75 per hour. The Appellant contends that his employment terminated by way of redundancy on or about 21^stDecember 2017.

Preliminary issue

The Appellant’s claim concerns his alleged lay-off by the Respondent for a period in excess of four weeks in late 2016. He claims entitlement to redundancy by operation of the Act at Section 12

It is a condition precedent to an entitlement to claim redundancy in accordance with the Act at Section 12(1)(b) that there was in fact a period of lay-off within the meaning of the Act in place. The parties are in dispute as to whether a period of lay-off was in existence.

The Court decided to consider the matter of whether or not there was in fact a period of lay-off in place at the material time as a preliminary issue. The Court made this decision in the interest of efficiency of process taking account of the fact that if the Court determines that a period of lay-off was not in place, such a decision would be determinative of the appeal in its entirety.

Position of the Appellant

The Appellant received a phone call from the Respondent on 3^rdNovember 2016 wherein the Respondent advised the Appellant that his forthcoming rosters up to and including 20^thNovember 2016 were cancelled. In that phone call the Respondent also advised the Appellant that the Respondent would try to find working hours to replace those cancelled rosters. The Appellant submitted that this phone call amounted to a notice in accordance with the Act at Section 11(1)b).The Appellant submitted that no further offer of hours or employment was received from the Respondent before the termination date of his employment on or about 21^stDecember 2016.

Position of the Respondent

The Respondent does not dispute the content of the phone call of 3^rdNovember 2016 but disputes that the phone call amounted to a notification of lay-off. The Respondent contended that events following that phone call were characterised by a failure in communication. The Respondent pointed to the issuance of two letters to the Appellant on 6^thNovember and 3^rdDecember 2016.

The Law

The Act at section 11 in relevant part provides as follows

• 11.— (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,

The matter before the Court in this preliminary issue is the question as to whether the phone call of 3^rdNovember 2016 can be regarded as meeting the requirements of the Act at Section 11(1)(a) and (b).

The Act at Section 53(1)(3) provides as follows

• 53.— (1) Any notice which under this Act is required or authorised to be given by an employer to an employee may be given by being delivered to the employee, or left for him at his usual or last-known place of residence, or sent by post addressed to him at that place.

  …(3) In this section reference to the delivery of a notice shall, in relation to a notice not required by this Act to be in writing, be construed as including a reference to the oral communication of the notice.

The Act sets out in Section 11(1) the conditions precedent for the identification of a period of lay-off.

It is clear that Section 53(1) of the Act permits the oral service of the notice described in the Act at Section 11(1)(b) insofar as the Act does not explicitly state that such notice be in writing.

It is common case that the Respondent, in the phone call of 3^rdNovember, notified the Appellant that forthcoming rosters were cancelled. It is also common case that the Respondent notified the Appellant that it would seek to secure working hours for him in the future.

On a plain reading therefore the Respondent, in that phone call, notified the Appellant of a cessation of his employment and further notified the Appellant that the Respondent did not believe that the cessation of employment would be permanent. The phone call can only be construed as proper notification in accordance with the Act at Section 11(1)(b).

In all of the circumstances the Court finds that the Appellant was in a period of lay-off following the phone call of 3^rdNovember 2016.

Determination of Preliminary issue

The Appellant was in a period of lay-off for the period following the phone call of 3^rdNovember 2016.

The Court so determines

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
8 March 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.