RPD1814

Background to the Appeal

This is an appeal brought by Ms Agnieszka Szumera (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00012935: CA-00017169-001, dated 25 July 2018) made under the Redundancy Payments Act 1967 (‘the Act’). The Complainant’s Notice of Appeal was received on 3 September 2018. The Court heard the appeal in Dublin on 25 October 2018.

There was no dispute between the Parties in relation to the material facts. These can be succinctly recited as follows. The Complainant was employed as a part-time cleaner by the Respondent from 1 March 2012 until 1 January 2018. She was placed on temporary lay-off from 25 August 2017 until 1 January 2018. After a period in excess of four weeks on temporary lay-off, the Complainant wrote to the Respondent terminating her employment with effect from 1 January 2018.

The Complainant submits that – pursuant to section 12(2) of the Act - she is entitled in all the circumstances to a statutory redundancy lump sum. It was submitted on behalf of the Respondent that it served a counter letter on the Complainant offering her a period of continuous employment but that this was not done within the timeframe (of seven days from the date of receipt of the employee’s intention to claim) provided for in section 13(2) of the Act. The Employer’s representative did not exhibit a copy of that letter containing the counter-notice to the Court.

The Law

Section 12 of the Act provides:

• “12(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.”

• “13(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.”

• “The s. 12 procedures were amended by s. 11 of the 1971 Act. After the employer has served the s. 11 notice of lay-off, the employee can now serve one of the two notices; either (a) a notice of intention to claim redundancy payment or (b) a notice terminating his contract (which is deemed to be a notice to claim redundancy payment.) He cannot serve both.”

Discussion and Decision

The Court determines that the within claim falls squarely within the meaning of section 12(2) of the Act. The letter sent by the Complainant to the Respondent informing the latter, after she had been on a period of enforced lay-off of longer than four weeks, is to be deemed – in accordance with section 12(2) of the Act – “to be a notice of intention to claim [a redundancy lump sum payment]”. This claim was not subsequently defeated by the Respondent within the meaning of section 13 of the Act.

On the basis of the foregoing, the Court determines that the Complainant’s claim for a statutory redundancy lump sum under the Act is well-founded. In calculating her redundancy lump sum entitlement the following applies:

Commencement date: 1 March 2012

Termination date: 1 January 2018

Rate of pay: €190.00 per week

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
5 November 2018______________________
THDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.