Complainant

Respondent

Anonymised Parties

A Cloakroom Attendant

A Bar and Nightclub

Representatives

Byrne Wallace Solicitors

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-00026267-001

13/02/2019

The complainant has worked for a number of years as the cloakroom attendant in the respondent’s nightclub and she works on Thursday, Friday and Saturday nights for around 14 hours each week. Due to construction work in the premises where she worked, she was laid off for six weeks on January 20th 2019. On February 4th, she claimed an entitlement to be made redundant. The respondent disputes this entitlement and wants the complainant to return to work.

The complainant’s case is that, when she was laid off for six weeks, she had no communication from the company. Before she was laid off, she understood from a conversation she had with the director who attended the hearing, that she may be entitled to be redundancy payment.   On February 4th, she submitted a form RP9, and, in her letter, she claimed that she was placed on lay-off for an unknown length of time. She said that this made it difficult for her to “wait for the potential, unguaranteed employment” with the respondent to re-start.

At the hearing, the complainant said that, while she worked for the respondent, she also had another part-time job and that she hasn’t started working again on nights from Thursday to Saturday.

For the respondent, Mr Kennedy said that the complainant is a very valued employee, and that there is no animosity between her and the respondent regarding this complaint.   He said that they would like her to return to work. The HR manager said that, from this Friday, April 5th, the complainant’s job is available on the same basis as she worked before, in the same place in their establishment with the same number of hours.

At the hearing, it emerged that the construction work had taken longer than anticipated, but the complainant was asked to come back to work on March 8th. This would have resulted in a lay-off of seven weeks.

A letter was submitted in evidence which shows that the HR manager wrote to the complainant on February 12th, to confirm that her return to work date was March 8th 2019. In the letter, the HR manager informed the complainant that she was “a long-standing, valued employee of the company and there certainly is a position for you with the company going forward.”

The Legal Framework

Section 12 of the Redundancy Payments Act, as amended, provides that and employee who is on lay-off may notify his or her employer of their intention to claim redundancy in the following circumstances:

If they have been laid off “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,”

The RP9 that was submitted by the complainant to her employer on February 4th after two weeks of lay-off was premature.

Section 13(1) of the Act provides that,

“…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.”

It is apparent from the evidence submitted at the hearing, that the complainant was informed by letter on February 12th that work is available for her on an ongoing basis. Although the issuing of the RP9 has no effect, if it had effect, this letter was “counter-notice” to the complainant’s notice of her intention to claim a redundancy payment, as required by section 13(2) of the Act.

Findings

Having considered this matter, it is apparent that a redundancy situation does not exist and the complainant’s job is continuing. It is also apparent that the respondent wants the complainant to return to her job, as she appears to be a person of very good standing and reputation with her employer.

I accept that the lay-off situation went on for longer than the complainant anticipated, but work was available for her after seven weeks, on March 8th 2019. I understand that this work was not in the exact place in the nightclub where the complainant formerly worked, as the nightclub will open again only on April 5th. However, the work that was available was as a cloakroom attendant in the bar area and it would not have been unreasonable for the complainant to accept this offer on a temporary basis, until the nightclub was ready to open.

Having considered this matter and having concluded that the complainant’s hob is not redundant, I decide that her complaint under the Redundancy Payments Acts 1967 – 2012 is not upheld.

Redundancy, lay-off