Complainant

Respondent

Anonymised Parties

A Barman

A Liquidator

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-00025026-001

15/01/2019

The respondent is the liquidator of the company where the complainant worked as a part-time casual barman, from December 2008. On August 8th 2017, he was informed by his manager that the company was going into liquidation. His complaint is that he did not receive a statutory redundancy payment.

Following the announcement about the liquidation, the complainant said that he got a phone call from a person representing the liquidator, looking for his contact details.   He then received an e mail with a questionnaire, a copy of which he submitted in evidence. This document has the title, “Claim for Statutory Entitlements Questionnaire” and the company where the complainant was employed is also named on the form. The e mail accompanying the questionnaire states:

“As discussed, please find attached a copy of the Statutory Entitlements Questionnaire together with an employee information leaflet. I would be grateful if you could complete the form and return it to me as soon as possible so that I may process your claim with the Department of Social Protection.”

The complainant filled in the form with his start and finish dates, his date of birth, salary, PPS number, his bank details and information about any wages due. No wages were due to him when his employment was terminated. On September 17th 2017, he returned the completed form to the liquidator with a copy of his P60 for 2016.

Nothing further happened and in December, the complainant contacted the liquidator again. On January 2nd 2018, he received his P45 by e mail. During a phone call with a representative from the liquidator’s office in February 2018, the complainant said that he was informed that a transfer of an undertaking had taken place and that he was not entitled to redundancy. He had not been informed about a transfer of an undertaking and, as far as he was concerned, the liquidator had contacted him in August 2017 to determine his entitlement to redundancy.

He contacted the liquidator again several times in 2018 and, at the hearing, he produced evidence of telephone calls in April, August, October and November. His phone records show that he had seven conversations with the liquidator’s office during this time.

At the hearing, the complainant produced evidence of a communication via the liquidator’s web page on August 27th 2018 in which he asked someone from their office to contact him about his redundancy. Nothing came of this enquiry. On September 21st 2018, he sent an e mail to the directors of the liquidator’s company, one of whom was the person appointed as the liquidator of his former employer.

On September 24th 2018, it appears that the liquidator submitted an online claim for redundancy to the Department of Social Protection on behalf of the complainant. This is evidenced by a communication from the Department to the complainant dated October 9th 2018, in which they refer to this online claim. The liquidator’s office had the incorrect date of termination on the submission, August 8th 2018 instead of August 8th 2017. The complainant contacted the liquidator’s office and asked them to amend the redundancy application.

On November 6th 2018, the liquidator wrote to the complainant enclosing a copy of an RP50 for him to review, sign and return to them. He completed this form on November 7th and the evidence shows that it was signed by the liquidator on November 9th 2018.

On November 23rd, the Department of Social Protection wrote to the complainant advising him that, to be eligible for a redundancy payment, a claim must be submitted within 12 months of the date of the termination of employment. As his employer went into liquidation on August 8th 2017, his application was out of time and, for this reason, he did not qualify for a payment.

On November 29th 2018, the complainant wrote again by e mail to the directors of the liquidator, but he got no response.

The liquidator did not attend the hearing.

The Relevant Law

The entitlement to a statutory redundancy payment is set out at section 24 of the Redundancy Payments Act 1967, as amended. The section of the Act provides that,

“…an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

The Redundancy Payments Act 1971 inserts a new sub-section (2A) after this paragraph which provides that an employee may be permitted to make a claim after the expiry of 52 weeks:

“Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

Extension of the Time Limit to 104 Weeks

Having considered this matter, it is evident that the liquidator, on behalf of the complainant, submitted a formal claim for redundancy to the Department of Social Protection, but this was done outside the time limit of 52 weeks, as set out at section 24(1) of the 1967 Act. It is my view that it was reasonable for the complainant to assume that the liquidator was dealing with his entitlement to redundancy, as they made an initial assessment of his status in September 2017. However, it took more than one year for them to make an online claim for redundancy, and, on that occasion, they submitted inaccurate information. It was not until November 2018 that the liquidator sent an application on a completed RP50 to the Department of Social Protection. In his evidence, the complainant said that he relied on the liquidator complete the process and he was shocked to find that they missed the 52-week deadline.

It is my view that the complainant has shown reasonable cause for his application for redundancy not being submitted within 52 weeks, and this timeframe can be extended to 104 weeks, as provided for in section 24(2A) of the Redundancy Payments Act 1967, as amended.

I have concluded that this complaint is well founded and I decide therefore that the complainant is entitled to a statutory redundancy payment based on his insurable employment with his former employer from December 12th 2008 until August 8th 2017.

Redundancy, expiry of 52 weeks