FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : LEINSTER CLEANING SERVICES (REPRESENTED BY JOHN SMITH BL, INSTRUCTED BY CORMAC O'CEALLAIGH SOLICITORS) - AND - MR ARUNIS MUNINGUS DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No ADJ-00016797
BACKGROUND:
2. This is an appeal of the Decision of an Adjudication Officer to the Labour Court in accordance withtheRedundancy Payments Act 1967. A Labour Court hearing took place on 19th June 2019. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This is an appeal by Mr Michael Moore T/A Leinster Cleaning Services (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00016797, dated 5 March 2019) under the Redundancy Payments Act 1967 (‘the Act’). The Notice of Appeal was received by the Court on 15 April 2019. The Court heard the appeal in Dublin on 19 June 2019. Both Mr Muningus (‘the Complainant’) and Mr Moore gave evidence.
The Factual Matrix
There is no dispute between the Parties about the relevant facts. They can, therefore, be recited succinctly as follows. The Respondent operates a contract cleaning service. The Complainant worked on a full-time basis for the Respondent between 2011 and May 2018 as a caretaker at a premises in respect of which the Respondent was contracted to provide cleaning services. In May 2018, the management company at the aforementioned premises terminated the Respondent’s contract.
Thereafter, the Respondent placed the Complainant on temporary lay-off with effect from 22 June 2018. The Respondent effected the lay-off verbally only. On 12 September 2018, the Complainant served a completed Form RP77 on the Respondent indicating his wish to receive statutory redundancy in circumstances where the period of lay-off had continued for some three months during which period he had not been offered resumed or alternative employment by the Respondent. Within one and half hours of receiving the Form RP77, the Respondent sent a replying letter to the Complainant (by email and by registered post) offering him alternative employment in a different location. The Complainant, it appears, was unwilling to accept this offer of alternative employment and referred a complaint under the Act to the Workplace Relations Commission. An Adjudication Officer upheld the complaint and made an award of statutory redundancy to the Complainant. As a result of a miscommunication between the Respondent and his Solicitors, the Respondent was neither present nor represented at the hearing before the Adjudication Officer.
Submissions
The Complainant relies on section 12 of the Act to ground his claim for statutory redundancy in circumstances where he had been placed on temporary lay-off for four continuous weeks or longer and where he had served notice of his intention to claim redundancy on the Respondent and the latter, while purporting to avail himself of his entitlement under section 13 of the Act, failed to confirm to the Complainant in writing that he was in a position to offer him at least thirteen continuous weeks of employment commencing no later than four weeks from the date of the counter-notice.
Mr Smith BL, on behalf of the Respondent, submits that his client did comply with section 13. However, he also submits that section 15(2) of the Act takes precedence in the circumstances of this case as the Respondent had made a clear and unequivocal offer of suitable alternative employment to the Complainant in his replying letter of 12 September 2019. The Complainant, for his part, submits that the offer of alternative employment was not a suitable one as it would have added considerably to his travel time.
The Respondent’s Letter of 12 September 2019
The Respondent told the Court under oath that this letter was drafted by his Solicitor and that it was his (the Respondent’s) clear understanding that he issued it to the Complainant as a counter-notice, within the meaning of section 13 of the Act, in order to defeat the Complainant’s claim for statutory redundancy.
The substantive part of that letter reads as follows:
- “I refer to your employment and your recent lay off period … As you know, we did not expect this period of lay off to be as long as it turned out to be. Unfortunately, we still have not normalised our relationship with the Management Company.
In the interim we have been trying to find a similar position for you within the company so that we may keep you employed. I am delighted to now inform you that we have sourced a cleaning position for you within the company for the same amount (sic) of hours as you have been on, for the same pay and just a short distance from Lyreen Manor Apartments.
Your new position will be in the Orchard Garden Centre in Celbridge. I would very much like to discuss this further with you and to that end, you might please get in touch …”.
Sections 12, 13 and 15 of the Act are reproduced below.
Section 12
- 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.
- (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
- 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.
- (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;
- 15. Disentitlement to redundancy payment for refusal to accept alternative employment
(1) An employee shall not be entitled to a redundancy payment if
- (a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before [the termination of his contract],
(c) the renewal or re-engagement would take effect on or before the date of [the termination of his contract], and
(d) he has unreasonably refused the offer.
- (a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,
(c) the offer constitutes an offer of suitable employment in relation to the employee,
(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and
(e) he has unreasonably refused the offer.
(2B) Where—
- (a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and
(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.
- (a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
Discussion and Decision
Notwithstanding Mr Smith BL’s submission to the contrary, the Court finds that the issue that arises for determination in this appeal can be addressed having regard solely to the lay-off provisions in sections 12 and 13 of the Act. The text of the Act does not in any way make those provisions subject to section 15 of the Act. The latter provision does not displace in any way the circumstances in which (a) an employee who has been laid off for a minimum specified period can initiate a claim for statutory redundancy; and (b) that employee’s employer can defeat the employee’s claim.
Those circumstances are stated with abundant clarity in the Act. In relation to (b), an employer who seeks to defeat an employee’s well-founded claim for redundancy in a lay-off situation must take such steps as will permit the employee to form a reasonable expectation “that not later than four weeks after [the date of the employer’s counter-notice, the employee would] 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.” The Court is firmly of the view that the Respondent’s letter of 12 September 2018, did not clearly and unequivocally communicate to the Complainant any such assurance. This is all the more regrettable in circumstances where the Respondent’s evidence to the Court was that the letter was drafted by his Solicitor.
In summary, the Court finds that the Complainant engaged section 12(1)(b) of the Act on 12 September 2018 when he served a completed Form RP77 on the Respondent; and the Respondent unsuccessfully attempted to serve counter-notice to the redundancy notice on the Complainant by means of his letter of the same date.
In all the circumstances, therefore, the Complainant is entitled to a statutory redundancy payment calculated in accordance with the following facts:
Start date: 1 November 2011
Termination date: 12 September 2018
Weekly gross pay: €436.80
Period of lay-off: 22 June 2018 to 12 September 2018
The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
FMc______________________
24 June 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.