Complainant

Respondent

Anonymised Parties

A Salesman

A Motor Business

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025036-001

16/01/2019

This is a claim for Redundancy advanced by the Complainant and disputed by the Respondent. Both parties represented their own case. The Respondent had submitted a written response to the complainant’s initial statement of complainant on 25 January 2019.

On the first day of hearing, there was no appearance by or on behalf of the Respondent. I waited the usual period and pressed ahead in the attendance of the Complainant and his Wife. Once I had heard from the complainant and reviewed his documents, I discovered the Respondent sitting some distance away from the hearing rooms. He approached me and asked that the case go ahead as he had not seen the Listings for the Adjudication Hearings. By then the complainant had left the building and I explained that I would give some thought to his request.

I requested that the case be relisted to hear from the Respondent and notified the complainant to that effect. The case was relisted for April 10, 2019 and both parties were in attendance on that day. The Complainant had sent in an array of inter party email correspondence in advance of the hearing, which was copied for the attention of the Respondent.

The Respondent title was amended on consent.

I commenced the hearing by giving both parties a summary of Day 1 at hearing.

The Complainant outlined that he had worked as a Sales person with the Respondent Business from 11 September 2016 to 14 December 2018. His typical wage was €421.39 gross for a 5-day week. He had been placed on a 3-day week in October ,2018, which altered the gross wage to €241.37 per week. The Complainant claimed a lump sum redundancy payment. He did not have a contract of employment.

The Complainant submitted that on 13 December 2018, his employer had informed him that he was to be let go due to lack of work with a next day finish. The Complainant requested a P45 to facilitate preparation for Social Welfare as he had a family to provide for. The Respondent told him to sort it out himself and he secured it promptly from the company accountant dated 14 December 2018.

The Complainant requested a Redundancy Payment from the Respondent on 14 December over the phone. This was refused, and the Respondent undertook to speak to the Accountant and revert.

On Monday 17 December, the complainant signed on for DSP purposes. He received a follow up contact from his former employer directing him against going to Social Welfare as he was trying to sort matters. He learned that the Respondent was trying to raise a loan for the business. The Respondent told him that he was going to email him a form where redundancy would not be necessary, and he required return of the P45.

The form referred to be an RP9 form. Once received, by email and ultimately by post on 20 December 2018, the complainant took legal advice and was advised not to sign it and re-affirmed the request for Redundancy. The Respondent refused the application for redundancy and emphasised that a return to work date would follow this temporary layoff.

The Complainant was confused at the mixed messages 14-17 December 2018 and needed time to think .He did not sign the form as he was certain that he had been terminated not laid off .He was apprehensive that if he signed it , it would re-establish the employment relationship , only for him to be laid off again .The Complainant refused to sign the form and requested a Redundancy payment. This was refused on grounds of temporary layoff. The Complainant exhibited an email dated 18 December 2018 an extract of which:

“The Form Rp9 you want me to sign means that you have to take me back in 4 weeks or I get redundancy anyway. The P45 has been issued and I no longer work for you, so it makes the Rp9 irrelevant”

The RP9 followed by way of registered letter and was signed by the employer requesting the complainant’s signature. The Complainant submitted a Rp11 form the next day requesting an RP50 form and redundancy payment.

The Respondent contacted him on January 11 requesting signage of the RP9. He denied that he had been offered a start of a 3-day week by the Respondent at that juncture. He said it was not a “there and then” offer of start.

The Complainant moved his complaint to the WRC on 16 January 2019.

The Complainant submitted that Temporary Lay off was not acceptable to him as it would create further uncertainty in an already uncertain business. He had since found new work at a separate employment. He re-affirmed his claim for a lump sum payment in redundancy.

The Respondent operates a family business which sells machinery and motor cycles. The Respondent disputes that a redundancy situation prevailed and came to the hearing to contest this. The Respondent had filed a defence to the claim on January 28, 2019.

The Respondent gave some background to the case, where the complainant had been hired from the Job Bridge scheme in 2016. He had worked full time. The Complainant had been restless in his work during 2017 and wanted to leave previously.

He outlined that he had placed the complainant on a three-day week in October 2018 as the business was quiet. The Respondent denied that the complainant’s employment had been terminated on 14 December as claimed. He submitted that the complainant was asked to work up to the Christmas holidays, after which he would be laid off during January and February 2019. The Complainant did not agree, saying that he had other work lined up. The Respondent understood that had two interviews to go to.

The Respondent had tried to gather funds to pay the complainant.

The Respondents sole intention was to place the complainant on temporary lay off and he had no intention of terminating his employment. The Respondent or his accountant did not authorise the release of the p45 dated 14 December2018. The Complainant secured the document from the accountant’s assistant. The Respondent asked for its return but did not receive it.

The Respondent submitted that he had maintained a presence in the office most of 14 December until he left for Castleisland at 4.30pm. The Complainant had ample opportunity to meet with him. He thought that the complainant had wanted his signature on social welfare forms for short time purposes.

The Respondent had sought to address the down turn in business through placing the complainant on temporary layoff. The rp9 was the appropriate form to cover those circumstances as it was not an immediate redundancy situation.

The Respondent outlined that the business had a seasonal element to it and peaks and troughs were an order of business. The Respondent hoped that the complainant could be returned from lay off quickly, but he refused to engage in conversations, saying “I don’t work for you “An offer of work made on 11 January 2019 went unanswered. He made subsequent attempts on February 1 and 27 2019. The business has now picked up and the complainant will have to be replaced.

The Respondent also drew the attention of the hearing to an email he sent the complainant on January 11, 2019, an extract of which:

“The form RP50 is for redundancy situations and this is not one. I have sent you a form Rp9 and if you disagree with that you could fill out part B of that form and return the form to me “

The Respondent reaffirmed that he had not made the complainant redundant.

During the hearing, the respondent raised the issue surrounding a missing key which he understood was in the Complainants possession. A Customer needed access to the key and cost of rectification would be in the realm of €2,000 plus VAT. This matter is not before me.

I have listened carefully to both parties’ presentations in this case. I am grateful to the Complainant for returning to the process post the first day of nonappearance by the Respondent at hearing.

The complainant had 2 years and 3 months service before the events of 13/14 December occurred in his work place.

This claim is about Redundancy Section 7(1) of the Redundancy Payments Act 1967 -2014 provides that: 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 the scenarios detailed in Section 7(2) of the Act.

In the EAT case St Ledger V Frontline Distributors Ireland ltd [1995] ELR 160 emphasised that a Redundancy is based on impersonality and qualitative change.

In the instant case, I found a high level of personality imprinted on the facts of the case. It was clear to me that the issue of the missing “red key “was foremost in the Respondents mind and the Complainant had no desire to advance this conversation. This was clearly unfinished business.

I am grateful to the parties for considering an opportunity to resolve the case informally and I respect the complainant’s position that he wished to move to decision in the case.

The facts of the case are based on what happened post the complainant being placed on a 3-day week on 30 October 2018. He exhibited a record of his pay to reflect this. This was not short time.

Lay off is described in

Lay-off and short-time.

11

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,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

A right to redundancy payment is provided for in Section 12 of the Act

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.

The RP 9 form is an actualisation of Section 11 and 12 of the Act by way of an Administrative form. The party’s recollections of just where this form fits in the case go to the core of the entire case.

I have reflected on both parties’ recollections. The Complainant is adamant that he was “let go “on 13 December 2018. He applied for Redundancy 1 day later by way of a phone call. I found this unusual. On 17 December, he learned from the Respondent and quoted by text that “the layoff is still on but hopefully temporarily. You must sign, and I must sign this form (RP9) and when it picks up you will resume your employment, if you haven’t got another job by then…… Also, the Accountant needs your P45 to amend it for holiday pay.”

The Respondent is equally adamant that he did not dismiss the complainant. He was forthcoming in his lack of knowledge around procedures of Lay Off. However, he balanced this by submitting that he worked from his Accountants advice and he was concurrently busy trying to raise funds for the business.

A careful review of the email which followed at 3.31 pm on 18 December 2018 indicates an awareness from the complainant at least that the Respondent would be unable to take him back until February or March 2019. He disputed the relevance of a Rp9 and followed up with a separate claim for Redundancy. He recorded that he no longer worked for the respondent.

An hour later the Respondent was back by email disputing that he had authorised the release of the P45. He also disputed the suggested February restart and indicated that it was “weeks and not months “before work would restart.

The respondent prevailed on the complainant on January 11, 2019 to sign part B or the RP9 which is an application for redundancy. The Complainant was unwilling to do this as he felt that he would then be trapped into an offered return in accordance with Section C. He believed that his pathway to Redundancy payment via Rp50 stood a greater chance of success as his legal advice had suggested.

The problem for me in this case is the over reliance on email communication and my lack of proximity to the external advisors in the case. E mails are one sided communique and not reflective of open communication. It would have assisted everyone if the parties could have sat down with the Accountant and the Complainants legal Advisor on Monday December 17,2018 to tease out the Respondent intention and the complainant would have been afforded the dignity of being allowed to seek clarifications. I accept that he was working largely in the dark.

It now falls to me to resolve the conflict between the parties. As stated earlier, the issue of the red key is not before me. It remains unresolved between the parties.

The respondent is not bound to notify an employee in writing of Temporary Lay Off or Short Time. The RP 9 is a useful enabling tool for both parties to navigate their way through a lay off situation followed hopefully by a recommencement or eventual redundancy. The process is time limited to protect both parties.

I have found that the Respondent did hesitate in his communication with the complainant on 13 December. I accept that he saw it as a temporary layoff but may not have been crystal clear in that regard. His efforts to mend his hand in that regard were dismissed by the complainant with undue haste. The only designated space for the complainant’s signature on a Rp 9 form is part B, Notice of Intention to claim a redundancy payment. The Complainant was invited to place his signature on this form on several occasions within the cognisable period permitted in Section 12. I have found that the Complainant distanced himself from the employment in an unequivocal fashion on 18 December 2018 when he communicated that the Rp9 form was irrelevant and he no longer worked for the Respondent. I have retained the original RP 9 form for the file.

I appreciate that the complainant had a genuine belief that he was doing the right thing by his family and had serious misgivings regarding the viability of any offer of work. However, Section 12 requires a different course of action in pursuance of a redundancy payment post lay off. This is set out in Part B of the Rp9 form.

I have concluded that what followed in the complainant’s case was a period of “poorly articulated” “Temporary Layoff “on 13 December 2018. This was clarified clearly on 17 December and on 20 December by a signed Rp 9 by the Respondent. I accept that the Respondent did not intend to dismiss the complainant and his reference to lay off could always have been addressed more succinctly.

I have found that the Complainant did not allow himself time to consider the implications for this before distancing himself from the Respondent on 18 December 2018. Based on the evidence before me, I have interpreted this action as a resignation of his employment on 18 December 2018. I found this to be regrettable, but I also noted that the Complainant had made his mind up to leave. He experienced difficulties subsisting on a 3-day week and he understandably was striving to obtain higher paying work to support his family.

However, it was plain to me that the requests for a return of the P45 should have been handled better between the parties. On the first day of hearing, the complainant pointed to holiday pay outstanding. The Respondent undertook to pay this. He submitted that the P45 was requested back to enable this payment as it was taxable.

In any case, a P45 is not determinant of a dismissal. I found that the complainant was clear in his message on December 18 where he affirmed that he no longer worked for the Respondent. He refused the subsequent offers of start dates during early 2019.

I have decided to resolve this conflict in evidence in the Respondent favour, notwithstanding my comments on the sub optimal manner of communication between the parties.

I have found that the Complainant was not dismissed by redundancy on 14 December 2018. I have found that he resigned his employment during a period of temporary lay off and did not activate the options allowed to him to either claim redundancy or return to work as a result of the lay off . I note that the complainant was not replaced, and the Respondent is now keen to fill the position.

I have found the complaint to be not well founded.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complainant has not succeeded in his claim for Redundancy.

I have not established that a dismissal occurred in this case. I have established that the complainant left his employment prior to realising the opportunities permitted in Section 12 of the Act concerning Temporary Layoff as administered in Part B of the RP9 form.

Claim for Redundancy