ADJ-00019347

Complainant

Respondent

Anonymised Parties

An Apprentice Electrician

An Electrical Contractor

Representatives

BrianNolan,Connect Trade Union

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-00025228-001

23/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025228-002

23/01/2019

The complainant started working with the respondent on September 15^th 2015 as an apprentice electrician.  On August 3^rd 2018, the respondent told him that he had no suitable work available for him and he was given an RP9 form.  The purpose of this is to notify an employee that he is being temporarily laid off.  The reason for the lay-off given on the form was “shortage of work.”  A few weeks later, when he hadn’t heard from his employer, the complainant looked for another job and he started work with a new employer on November 12^th 2018.

This complaint is a claim for a redundancy payment and for payment in lieu of notice.

For the complainant, Mr Nolan of the Connect Union said that when he was informed in August 2018 that there was no work available, the complainant didn’t accept that this was a lay-off situation, as lay-off wasn’t discussed.  Mr Nolan argued that while an RP9 form was issued, the proposed lay-off was not intended to be temporary.  Even if the RP9 was issued “in good faith,” he said that this was an “abdication of the employer’s obligations under the Redundancy Payments Act and the Minimum Notice Act.”  When he had no further contact from his employer after August 3^rd 2018, the complainant found another job where he could complete his apprenticeship.

He claims that, as his employer did not notify him of when work would be available again, he is entitled to consider that his employment was terminated due to redundancy.  He said that he sent the respondent an RP77 form, making a claim for redundancy, although a copy of the form was not presented in evidence.

At the hearing, Mr Nolan argued that the temporary nature of the proposed lay-off was not defined and this suggests that it may not have been temporary.  He said that the issuing of the RP9 “on the wrong basis” cannot be an acceptable way of denying an employee their statutory entitlements.

The respondent said that he laid off the complainant due to a shortage of work that he could do.  He said that he was contacted in early November by a major electrical firm who had interviewed the complainant for a job.  The respondent said that he gave the complainant a “glowing reference.”  He then got a call from the complainant, who told him that he had been looking for work and to let him know that he might get a call from a prospective employer.  The respondent said that he told the complainant that he had been contacted for a reference and he wished him all the best.  He said that he sent out a P45 in December, when he was finalising his year-end accounts.

The respondent’s case is that he could have offered the complainant more work in December, but he assumed that, as he had found a job, he didn’t intend to come back to work for him.  He said that he didn’t get an RP77 from the complainant and, rather than submit a complaint to the WRC, if the complainant had contacted him, they could have sorted out this claim.

Entitlement to a Redundancy Payment

Section 7(1) of the Redundancy Payments Act 1967, (“the Act”) as amended, sets out the entitlement to a redundancy lump sum:

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.”

Section 7(5) of the Act provides that “the requisite period” is 104 weeks of continuous service.

The complainant meets the criteria under sub-section (a) above, as he was employed by the respondent for more than 104 weeks.  He also meets the criteria under (b) as he was employed in insurable employment.

Section 12(1) of the Act goes on to consider lay-off and short-time in more detail and provides that, 

“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.”

Notification of an Employee’s Intention to Claim a Redundancy Payment

The complainant meets the criteria under sub-section (a) of Section 12(1) above, as he was laid off for more than four consecutive weeks.  He does not, in my view, meet the criteria at sub-section (b).  Having been laid off on August 3^rd, he phoned the respondent in early November and told him he had been interviewed for a new job.  He didn’t ask about the possibility of returning to work and he started a new job on November 12^th 2018.  At the hearing, the respondent said that he expected to have work in December and that the complainant would have been re-employed by him if he had been available.  It is my view that in November 2018, the complainant considered his relationship with the respondent to be at an end.  When he informed his employer that he was looking for a new job, he did not notify him of his intention to claim a redundancy payment.  I find therefore, that the complainant has not complied with the criteria under section 12(1)(b) above.  Part B of the RP9 that was issued to the complainant on August 3^rd 2018, could have been used to make this claim.

Section 12(2) of the Act provides an alternative to the requirement for an employee to make a formal claim for a redundancy payment.  This section provides that, where the employee gives notice in writing to his or her employer of their intention to resign, that this is a claim for redundancy:

“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 complainant did not give notice in writing of his intention to terminate his contract of employment and, on this basis, he did not give notice of his intention to claim a redundancy payment.

The circumstances of this complaint are similar to those of Jonathan Graydon against McGrattan and Kenny Limited, RP396/2005.   Mr Graydon was an apprentice who was placed on temporary lay-off.  He found a job after a week and, eight months later, he approached his former employer about a redundancy payment.  He was offered his old job back, but he declined this offer.  Referring to section 12(2)(a) of the Redundancy Payments Act which has been quoted above, the Employment Appeals Tribunal found that “an employee who wishes to claim a redundancy lump sum must serve notice of intention to claim in writing within four weeks after the lay-off / short-time ceases.”  In Mr Graydon’s case, the Tribunal found that “the lay-off was continuing and therefore, the notice was served at a time that was not outside four weeks after the end of the lay-off period.”  In the case under consideration here, the respondent said that he could have taken the complainant back in December, when he had work available.  The period of lay-off was therefore continuing.

The requirement of the legislation is clear:

1.  Notice of the intention to claim a redundancy payment must be in writing;

2.  The notice must be issued within four weeks of the end of the period of lay-off;

3.  Alternatively, where an employee submits notice in writing of their intention to resign, the employer must take this notice as an intention to claim redundancy.

There is no evidence that notice of a claim of redundancy was given to the employer in writing and he said that he only became aware of such a claim when he received notice of this complaint to the WRC.

Counter-notice of the Employer

While section 12 of the Act provides that an employee on lay-off must notify their employer in writing of their intention to claim a redundancy payment, the right of the employer to give counter-notice is set out at section 13.  It seems therefore, that the reason an employee is required to give notice is so that the employer is given an opportunity to counter this claim with a reasonable expectation that he or she will provide work for the employee within a four-week timeframe.  It is apparent therefore, that the legislation intends that an employer should be properly on notice of an employee’s intention to make a claim for redundancy, so that, if it is feasible, this claim can be refuted with the offer of a resumption of work.  It seems contrary to the intention of the legislation for an employee to move on and take up another job, without making his employer aware that he considers himself to have been made redundant. 

I refer to Mr Nolan’s suggestion that the RP9 was not issued in good faith and that it was a measure used to avoid paying the complainant a statutory redundancy payment.  The respondent is in the electrical contracting business and, while it is sometimes difficult to find suitable work for apprentices, he said that he had “a burst of work” coming up in December and he could have taken the complainant back.  By taking up a new job and by not informing his employer that he intended to claim a redundancy payment, the complainant prevented his employer from contesting any liability for redundancy, and from resuming his employment, as provided for at section 13 of the Act.

The complainant said that he submitted a form RP77 to the respondent, although he didn’t bring a copy to the hearing and he did not state when he sent the form.  The respondent said that he didn’t receive an RP77 from the complainant.

As the complainant has not complied with the notification requirement set out at section 12(1)(b) or 12(2) of the Redundancy Payments Act, I find that he has not established an entitlement to a redundancy payment.

As I have concluded that the complainant has not complied with the notice requirements set out at section 12 of the Redundancy Payments Act, I decide that his complaint is not upheld.

 The complainant claims an entitlement to payment in lieu of his entitlement to minimum notice.

The respondent’s case in respect of the lay-off situation has been set out above under the heading of the complaint under the Redundancy Payments Act.  His position is that the complainant’s employment was not terminated by him and that the complainant resigned when he got another job while he was laid off.

It is my view that the complainant was not made redundant and that he resigned from his job while he was laid off from his employment with the respondent in November 2018.  I find therefore that he is not entitled to pay in lieu of notice.

As I have concluded that the respondent did not terminate the complainant’s employment, I decide that he was not entitled to notice or pay in lieu of notice and his complaint in this regard is not upheld.

Redundancy, lay-off, notice, counter-notice, RP9