ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bricklayer | A Construction Company |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00029435-001 | ||
CA-00029435-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
These complaints were submitted to the WRC on August 13th 2019 and in accordance with Section 41 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2014, they were assigned to me by the Director General. I conducted a hearing on October 4th 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant represented himself at the hearing and the respondent was represented by one of the company’s directors.
Summary
The complainant is a bricklayer and, according to the respondent, is a skilled and able craftsman and he worked for the company from July 2007 until January 2019. Previously, he was employed by the respondent for many years, but he went out in business with a colleague, before returning to work with the company in 2007, following the very tragic death of his colleague. At the hearing, the director who represented the respondent said that from the onset of the financial downturn in 2008, they kept as many employees as they could in employment, including the complainant and they traded through the recession with the support of personal funds from the founders. The complainant said that he got fed up with the difficulties they encountered trying to do work when they couldn’t pay suppliers. He said that some employees were let go, but he was kept on. He said that he will be 70 this year. For some time, the director said that the complainant had talked about “giving up” and retiring. The director said that the complainant was a great worker, and no issues were raised regarding his suitability or capability for the job. At the latter end of 2018, the director said that the complainant talked to him a couple of times about retiring. In early January 2019, he said that there wasn’t a lot of work on the books and he and the complainant had a chat and this was followed up with a conversation with the person who looks after payroll and the complainant decided that he would retire. The director said that following his retirement, up to the summer of this year, the complainant did some work for the company, although the complainant disputed this. The director said that he will have work for the complainant at any time if he wishes to come back to work It was apparent at the hearing that the respondent and the complainant were on good terms, and the complainant was simply seeking a payment in recognition for his service with the company over many years. |
Findings and Conclusions:
CA-00029435-001: Complaint under the Redundancy Payments Act 1967 This was an unusual case as the parties were not in dispute, apart from a certain urging on the part of the complainant, to get the respondent to do something by way of recognition of his service. It is my view that the provisions of the Redundancy Payments Act do not apply to this case, because it is clear that, if the complainant had not decided to retire, he wouldn’t have been let go. The respondent company could have made the complainant redundant at any time during the recession, but they decided against this course of action. All the conversations about leaving were initiated by the complainant, and I am satisfied that, even after he retired, he worked for the respondent, albeit on an informal basis. I am also satisfied that, if he wanted to return to work for the company, the directors would be happy to have him back. CA-00029435-002: Complaint under the Minimum Notice and Terms of Employment Act 1973 From the discussion at the hearing of this complaint, it appears that, in January 2019, the complainant and the respondent agreed that the complainant would retire. No evidence was submitted regarding any notice that was given to the complainant or any pay in lieu of notice and I have to conclude therefore, that notice was not given or paid. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint regarding minimum notice in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I find that the complaint under the Redundancy Payments Act is not upheld. I find however, that the complaint under the Minimum Notice and Terms of Employment Act has merit and I decide that the respondent is to pay the complainant €4,038 in respect of his entitlement to six weeks’ notice, based on his service from July 2007. |
Dated: 10th October 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Redundancy, minimum notice |