ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011996(Conjoined with ADJ 12002)

Parties:

Complaint:

Date of Adjudication Hearing: 01/05/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act , 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 6 of the Payment of Wages Act , 1991, Regulation 18 of EC ( Road Transport) Organisation of Working Time of persons performing mobile road transport activities Regs 2012.S.I 36/2012, Section 27 of the Organisation of Working Time Act , 1997 and Section 7 of the Terms of Employment ( Information ) Act , 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints .

Claims CA-00015929-002,004,007,008,009,011,012 and 0014 were all withdrawn at hearing. The sole claim remaining is that of

Background:

Summary of Complainant’s Case:

The Complainant is a Carpenter who commenced work for the Respondent on 23 May, 1999.He worked as a full time permanent employee and his duties included manual handling and the operation of machinery.

Counsel for the Complainant submitted that the complainants gross pay was €658.29 per week. He had not been furnished with a contract of employment, payslips or a P45. A record of a continuous period of PRSI A1 contributions was submitted in evidence.

On 24 November 2016, the Complainant received a letter which stated “I do not have any work at this time for the complainant “.

Counsel for the complainant clarified that all claims save for the single claim for a Redundancy payment were being withdrawn at hearing. He submitted that some uncertainty had arisen in establishing the correct identity of the complainant’s employer and several potential respondents were cited on the complaint form.

In early December 2016, the Complainant had experienced instability in his financial payments received from the Respondent when two cheques bounced.

The Complainant submitted that uncertainty had lingered in relation to the correct title of the Respondent and on 21 November 2017 Revenue confirmed that the Respondent listed in this complaint was the named Respondent .

The Respondent handed the Complainant an RP50 form in early January, 2017 and completed the employee section on 12 January 2017. The form was never completed and the complainant had been denied his statutory lump sum Redundancy payment.

Counsel for the Complainant submitted that the Complainant satisfied the test for Redundancy outlined in Section 7(2) (b) (c) and (d) of the Act. He had the 104 weeks’ continuous service prior to the date of dismissal. The Complainant had not been replaced and the Respondent continued to trade.

The Respondent had not addressed his liability for Redundancy payment through arguments of inability to pay, solvency or financial position.

Counsel argued that the Complainant was entitled to the lump sum payment 36.04 weeks which amounted to €21,624.00. The Complainant had been in the dark on the reasons for this refused payment.

Summary of Respondent’s Case:

Findings and Conclusions:

I have considered both submissions as outlined by the parties. Both parties gave evidence on their respective positions.

A Redundancy situation is defined as occurring when there is a dismissal of an employee by an employer not related to the employee concerned and the dismissal results “wholly or mainly “from one of the situations outlined in Section 7(2) of the Redundancy Payments Act, 1967.

This case was complicated as there was no pathway of paperwork surrounding the complainant’s employment. I must acknowledge the extensive lengths which the complainant’s representatives went to prosecute the claim.

The Respondent acknowledged the void in paper work in terms of a contract of employment and other relevant documents. I will take this opportunity to strongly advise the Respondent to review this void in paperwork and the distress which it caused if he intends on hiring direct employees in the future. In addition, I would urge the complainant to pursue such documents in the face of such a void also.

I was encouraged to receive a detailed PRSI record which originated in 1980 which satisfied the Insurable employment and continuous employment test for the claim. I also considered the Accountant Report date May 18, 2018, which I requested at hearing.

It is of note that the Respondent did not dispute a Redundancy situation occurred as reflected in the letter he issued to the complainant date November 24, 2016. It may have been more advisable for the Respondent to have placed the Complainant on temporary lay off as a more accurate reflection of the spirit of the 24 November letter , where the complainant would have had more protections . It is regrettable that the RP 50 form was ceased and not completed. I have taken account of the declaration of inability to pay advanced at hearing and in supporting documents.

In considering all the facts of the case and the submissions adduced, I have found that the complainant was subject of a Redundancy situation in accordance with Section 7(2) (c) of the Act on 24 November 2016 and his claim is well founded.

Decision:

Claims CA-00015929-002,004,007,008,009,011,012 and 0014 were withdrawn at hearing. 

CA-0001529-013 Claim for Redundancy Lump Sum Payment.

Dated:   September 6th 2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: