Complainant

Respondent

Anonymised Parties

General Service Worker

An Industrial Services Company

Representatives

Jason O'Sullivan J.O.S 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-00031126-001

25/09/2019

The complainant submits that he did not receive his entitlement to redundancy payments.

The complainant commenced work on 11th October 2012 and signed a contract of employment on 28th January 2014 which included that the company reserved the right to lay off workers with as much notice as possible.

On 2nd April 2019 the complainant and other employees received written notification of a temporary downturn at work and that he would be placed on a 3 day week for five weeks which commenced on 8th April 2019 and continued for 8 weeks up until 31st May 2019.   Thereafter the complainant was advised that that lay off would continue for a further 3 weeks up until 24th June and RP9 forms were given by the respondent to employees.

The complainant returned to work but morale was low as there was much uncertainty for employees and working hours and income had reduced. On 28th June 2019 the complainant requested a reference as he wished to keep his options open for potential future employment. Another employee Mr A who worked in the same capacity as the complainant had received redundancy payment in March 2019 and on 10th July 2019 the complainant became aware that two more employees, Mr B and Mr C, had submitted requests for voluntary redundancy and the complainant also submitted a request to Mr D project manager on 11th July 2019. The complainant and his colleagues were advised that the decision would be made by Mr E, the Regional manager.

On 19th July 2019 Mr B and Mr C were advised that their application for redundancy had been accepted and left the organisation.   The complainant was advised that there would be no other requests for redundancy granted. On 25th July 2019 the complainant submitted a Form RP9 to the respondent and attempted to deliver to it to Mr D but was unable to do so and later sent it to the HR Manager Ms E and received no counter notice. A chain of emails went between the parties and the complainant submitted that he felt aggrieved with the selection process for redundancy and the complainant was advised that he had no entitlement to redundancy. It was submitted that in the 11 week period from 8th April 2019 to 21st June the complainant had worked 24 days whereas he would have worked or would have been paid for 60 days normally.

A grievance hearing took place on 31st July 2019 but the complainant felt too unwell to attend at work and returned to work on 13th August 2019 and there were no further attempts to deal with his grievance. The complainant felt he had no choice but to resign his position on 15th August 2019 and submitted that since his letter of resignation there have been further redundancies.

It was submitted that the complainant’s cessation of employment was owing to the behaviour of the respondent who treated him differently than other employees. The respondent placed the complainant on continuous lay off and reduced hours and were aware there was not going to be continuous work for the complainant but refused to pay him redundancy payment.

Following the hearing the respondent furnished the complainant’s pay slips and the complainant was given an opportunity to respond. The complainant responded that they had nothing more to add.

Case law cited included St Ledger v Frontline Distributors Ltd [1995] ELR 160.

The company operates under a Framework Agreement providing services to another organisation and there is no minimum of work guaranteed to the company under this agreement.

In March 2019 the respondent were advised of a potential downturn of work and consultation with employees took place on Thursday 28th March 2019 and on 8th April 2019 employees were placed on 3 day working until 31st May 2019 inclusive. At the time 2 employees requested redundancy but their requests were refused. There was a further downturn in works and all general service workers were placed on temporary layoff from 4th June 2019 to 21st June 2019 and on 24th June the complainant and other employees returned to 5 day working week. The complainant submitted a voluntary redundancy request dated 11th July 2019 but this was rejected for operational reasons and the complainant was advised of same.

The employee was not placed on short-time working as defined under the Act as the reduction of weekly hours were not half of the normal weekly working hours. The complainant was placed on temporary layoff for a period of three weeks under an RP9 form and therefore the requisite criteria to claim a redundancy lump sum was not met and this was communicated to the employee on 26th July 2019. It was denied that correspondence from 3 employees were presented at the same time as 2 of the requests were submitted prior to the complainant’s requested dated 11th July 2019.

The complainant was invited to a grievance meeting but declined and was advised to contact HR on his return to work so that the meeting could be rescheduled but the complainant did not do so. The complainant returned to work on 12th August, resigned on the 15th August 2019 and in his letter of resignation the complainant advised that he had secured a new role.

Following the hearing the respondent furnished the complainant’s pay slips and submitted that the complainant’s average working week during the period of reduced hours did not meet the definition of lay-off/short time working as defined under the Act.

The complainant submits that he had an entitlement to redundancy as his working hours were reduced and that other employees were facilitated with redundancy payment but he was not.

Section 11 provides that Lay-off and short-time occurs

(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

( a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

( b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where —

( a ) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

( b ) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

( c ) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

Section 12 provides that

(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.

(2) 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.

I have reviewed the evidence submitted including the payslips. It is clear that the complainant’s hours were reduced from 8th April 2019 until 31st May 2019 and there was no work available thereafter for a period of three weeks.   While I note that there does not appear to have been any transparent process that allowed for Mr B and Mr C to avail of voluntary redundancy and not the complainant, however, the complainant’s hours were not reduced to such an extent that he meets the definition of lay-off or short time working, as defined under the Act. I must find, therefore, that the appeal against the decision of an employer under this Act must fail and I must disallow the complainant’s appeal.

I must disallow the complainant’s appeal.

Redundancy