RPD1911

Background

The Complainant started working with the Respondent on 15^thSeptember 2015 as an apprentice electrician. On the 3^rdof August 2018, the Respondent advised him that he had no suitable work available and that he was placing him on temporary lay-off.

Complainant’s case

It is the Complainant’s case that he is entitled to statutory redundancy. He was placed on temporary lay-off in August 2018 and heard no more from the Respondent till he received his P45 in December 2018. Although he had started a new job in November 2018, he had not requested his P45 or indicated that he was leaving his employment. It was the Complainant’s position that he had not completed part B of the RP9 form or put his employer on notice that he would be seeking redundancy as he believed to do so would deprive him of an entitlement to payment in lieu of notice. The Complainant did not dispute that the first indication to the Respondent of his intention to claim redundancy was when he submitted his claim to the Workplace Relations Commission.

Respondent’s case

The Complainant was placed on lay-off with effect from 3^rdAugust 2018. The Respondent gave the Complainant a form RP9 setting out that he was being placed on temporary lay-off due to a shortage of work. The Complainant never submitted part B of the RP9 form nor put the employer on notice in any way that he was seeking redundancy. In November 2018 the Employer received a call from another company looking for a reference for the Complainant and the Respondent supplied same. The following day the Respondent received a call from the Complainant asking him to provide a reference which he did, no mention was made of a claim for redundancy. The first time the employer became aware that the Complainant was seeking a redundancy payment was when he received the papers form the Workplace Relations Commission.

The applicable law

Section 12 of the Act states;

Right to redundancy payment by reason of lay-off or short-time.

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.

Section 13 of the Act states;

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.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b)no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

Discussion and Conclusions

The Act is very clear in respect of the matters before the Court and the Court must address the within appeal strictly in accordance with its provisions.

It is not disputed that the Complainant did not fulfil the requirements specified in the Act at section 12(1)(b).

In all the circumstances therefore, and having regard to sections 12 and 13 of the Act, the Court is obliged to find that the Appellant is not entitled, by operation of the Act, to a statutory redundancy payment

Determination

The Court determines that the Appellant is not entitled to a statutory redundancy payment. The decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
DC______________________
21 August, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.