Complainant

Respondent

Anonymised Parties

A Carpenter

A Partitions Company

Representatives

Dan O'Connor, James Lucey & Sons

Seamus Hickey, Hickey Fitzgerald Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016502-001

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016502-002

21/12/2017

This is a claim for a lump sum Redundancy payment from Temporary Lay Off. The Claim is disputed by the Respondent.

The Complainant worked as a General Operative/Carpenter with the Respondent business from July 3, 1995 to July 2017 for a weekly payment of €563.55. He was placed on temporary layoff on July 17, 2017.

Complaint 1: CA -00016502-001

The Complainants Solicitor outlined that the complainant had never received a written statement of his terms of employment and this constituted a breach of Section 3 of the Act.

Complaint 2: CA -00016502-002

The Complainant was placed on temporary layoff on July 17, 2017.

The Complainant then wrote to his employer on 16 November,2017 and hand delivered an RP9 form seeking redundancy. He submitted that the Respondent questioned this action and stated, “what’s that?” The Complainant requested that he read the RP 9. There was no response until almost four weeks later.

The Complainant contended that he should have been offered 13 weeks work by November 22, 2017. On 19 November he was offered a couple of days work but rejected it as it didn’t manifest in the 13-week format. He was optimistic of a return to work as the Respondent did indicate that he would be recalled. He had not received a response to the RP 9 by November 29. He applied for Redundancy.

On 12 December 2017, and 11 January 2018, the complainant was refused a redundancy lump sum payment. The Respondent confirmed that he would have work available in the new year but there was no date or duration mentioned The Complainant stated that he worked at home until January 8, 2018, after which he took new work.

The Complainants Solicitor submitted that his client had been made redundant as the Respondent had not complied with the necessary counter offer of employment within the requisite time under the Act. He confirmed that the complainant had not refused work.

He outlined that if a layoff has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, an employee may give his employer notice in writing of his intention to claim redundancy. The Complainant complied with his obligations contained in Section 12 of the Act.

The Complainants representative then pointed to the parameters of Section 13 of the Act, where he submitted that unless the employer gives the employee a counter notice in writing within seven days of the employees notice, the employee is entitled to claim redundancy. He relied on a Labour Court Case of D and T Forkan Construction ltd and Michael Diamond, RPD181 which confirmed that a Redundancy situation had developed following an employer’s failure to comply with the counter notice requirements in Section 13 of the Act.

Complaint 1: CA -00016502-001

The Respondent confirmed that a written statement of terms of terms of employment had not issued to the complainant during his employment.

Complaint 2: CA -00016502-002

The Respondent disputed the claim for Redundancy and submitted that the complainant had refused a genuine offer of work during his period of lay off.

The Respondent has been in business, involving internal fit outs for construction purposes     over a 20-year time frame. He employed one full time worker, a sessional employee and he also worked with sub-contractors. The Respondents Solicitor submitted that he had no working knowledge of an RP 9 form as his longest period of managed lay off amongst employees was 6 to 10 weeks.

It was agreed that lay off occurred in July 2017 following the complainant’s holidays. Some work came in over August/ September 2017 on a “here and there basis “The Respondent issued new safety gear to the complainant in October ,2017.

The Respondent had work on a plant on 14 November, but the complainant was unavailable as he said that he was working. On 16 November, the complainant called to the Respondents house. On 19 November, the Respondent texted the complainant telling him that he had “work on “He understood that the complainant was offered a new position on 15 December 2017.

On 4 January, 2018 the Respondent offered further work to the complainant but there was no reply .The Respondent confirmed that he had managed previous layoffs informally and without reliance on documentation .The Respondent submitted a copy of a letter forwarded to the complainant dated January 11, 2018, He outlined that he had addressed the claim for a Redundancy payment by issuing a counter notice dated 12 December 2017 which indicated that work was available from 4 January , 2018, thus negating the claim for a Redundancy payment . The Respondent issued a P45 now as the complainant had obtained new work. The Respondent undertook to submit further documentation in support of the defence of the case.

In response to questions from the complainant’s solicitors, the Respondent confirmed that he had been trying to get work back and this was the reason why other work wasn’t put the complainant’s way sooner. The Respondent confirmed that the complainant had requested a period of 13 weeks work. He had phoned the complainant twice at the end of November to offer 4 weeks work. The Complainant had not been replaced and the work was covered by sub-contractors.

I have carefully considered the facts and submission presented by both parties. I requested supplementary documents from both parties and was grateful to receive:

Respondent: Phone Log and Copy of a 39-hour working week for the complainant week ending September 29, 2017.

Complainant: Record of Department of Social Protection Payments 2017 and 2018 comprising Illness Benefit and Job Seekers Benefit.

I have considered all documentation received.

Complaint 1: CA -00016502-001

I have found a continuous breach in Section 3(1) of the Act and the claim is well founded.

Complaint 2: CA -00016502-002

For the purposes of the Redundancy Payments Acts, an employee is dismissed because of redundancy, if “for one or more reasons not related to the employee concerned, his dismissal is attributable “wholly or mainly “to one of the five situations outlined in Section 7(2) of the Act. This is also accompanied a right to a redundancy lump sum payment following a specific period of lay off provided for in Section 12(1) of the Act, namely where an employee has been laid off for a period of four or more consecutive weeks or for a period of six or more weeks within a period of thirteen weeks.

I accept that a period of temporary layoff arose in this case on 17 July 2017. The notification given to the complainant in letter format was qualified by “We hope this will be for a short period”

I accept that what followed was an extensive period of lay off populated by one week’s work on the week ending September 29, 2017. I accept that the Respondent was actively scoping work for the complainant during this period but had limited success as the work was of short duration.

The phone records pro-offered by the Respondent were not disputed by the Complainant. The DSP records pro offered by the Complainant were not disputed by the Respondent.

I had sight of the RP 9 form relied on by the complainant as confirmation of his stated intention to claim a lump sum redundancy payment on 16 November 2017. It is of note that the Respondent did not lead with this form on 17 July as Part A is preserved for notification of temporary layoff. In my opinion this may have focussed minds sooner on the complex Administrative and legislative road map surrounding Temporary Lay Off.

Section 13 of the Act has relevance for the events that followed. In addition, the January 11, 2018 letter has a bearing on this stage of the case.

Right of employer to give counter-notice.

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.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

In the instant case, while the Respondent utilised Part C of the RP 9 form on 12 December 2017, he contested the claim for a Redundancy lump sum payment on the basis that work of not less than 13 weeks tenure would flow from 4 January 2018. While it is permitted to use Part C of the form, Bolger and O Neill, UD 831/2006 applied, the counter notice must fall within the strict parameters outlined in Section 13(2) of the Act, as amended i.e. within seven days.

The counter notice was presented almost three weeks after 16 November and re-enforced in the January 11, 2018 letter. It ought to have been presented before November 24, 2017.

Therefore, the facts of the case fall to be considered in accordance with Section 13(3)

If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

I accept from the evidence before me that the Respondent contacted the Complainant on the 13 and 19 of November 2017. However, he did not comply with the mechanism of the counter notice laid down in Section 13(2) of the Act within seven days.

I note the Complainants reliance on the Labour Court precedent in the case of

D & T Forkan Construction and Michael Diamond, RPD 181

This seemed to me to be analogous to the instant case and incorporated the Respondent contention that work was offered to the complainant in the case and subsequently refused. The Labour Court did not accept that extraneous offers of work outside the periods delineated in SS 11-13 of the Act could be considered in terms of an RP 9 claim for Redundancy Payment.The Complainant has fulfilled the requirements specified in the sections of the Act; the Respondent did not do so……

I find a certain mirroring of the facts in Diamond with the instant case and I accept its application. The Respondent in this case missed the deadline in terms of the seven-day response and cannot therefore rely on the offer of work incorporated in the RP9 form dated 12 December 2017 as being compliant with the requirements outlined in Section 13(2) of the Act.

I find on the evidence before me that the claim for a lump sum Redundancy Payment is well founded.