Complainant

Respondent

Anonymised Parties

A Construction Ground Worker

A Construction Company

Representatives

Self -Represented

No attendance at Hearing / Liquidator Correspondence received.

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-00031698-001

17/10/2019

The issue in contention concerns the eligibility of alleged prior employment service by the Complainant, to be included in his Redundancy calculation.

The Complainant began working on the 13 October 2014 for the former Principal, Mr. X, of the Company now in liquidation. At a later stage in early 2015 this employment became the Company, Company A, that he worked for until the final closure in August 2019.

The Complainant is Polish, is not really comfortable in the English Language. He took the Employer at face value and never questioned or was really aware of the changes in employer. He was off work in January 2016, at the request of the employer, was given a P45 and resumed work with the same Company on the 1st February 2016. He had not understood what was happening with the P45 at that time.   As far as he was concerned he had unbroken employment service and his Redundancy should be calculated from the 13th October 2014 as opposed to a commencement date of the 1st February 2016. At the Oral Hearing he acknowledged that he had been paid a Redundancy Lump sum for the period commencing 1st February 2016 to the end of 6th August 2019.

The Liquidator did not attend the Oral Hearing in Carlow. Proper Notification of the date, time and place of the Hearing was served on Principal Mr. A and I was satisfied that the correspondence had been passed on to the Liquidator. Despite non-appearance, the Accountancy Firm concerned did communicate by e mail with the WRC in relation to the case. The Respondent position was that on the records available to them the Complainant had broken his service in January 2016 and had been issued with a P45. He had resumed on the 1st February 2016.

Accordingly, they had calculated his Redundancy from the 1st February 2016 date.

They acknowledged that the Complainant had worked for the Principal, Mr. X, then a Sole trader in 2014 and had transferred to Company A in early 2015. They were operating on the available Records and these indicated a Start date of the 1st February 2016.

3:1        The Relevant Law.

The Redundancy Payments Act, 1967.

Section 20 – Change in Ownership of a Business quoted below.

Change of ownership of business.

20

20.— (1) This section shall have effect where—

( a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business, and

( b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as the previous owner) terminates the employee’s contract of employment, whether by or without notice.

(2) If, by agreement with the employee, the person (in this section referred to as the new owner) who immediately after the change occurs is the owner of the business or of the part of the business in question as the case may be renews the employee’s contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, section 9 (2) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).

From this Section, it is clear that the business of Principal Mr. A, the Sole Trader, the first engagement with Company A and the second engagement commencing on the 1st February 2016 constitute a continuous period of employment Service for the purposes of the Redundancy Payments Act,1967.

Sub Section 5(a) of Section 20 referred to above states

(5A) In a case mentioned in subsection (1) ( a ), the new owner shall be estopped from denying that an employee was in continuous employment (within the meaning of Schedule 3) unless, within 26 weeks of the change of ownership, he notifies the employee of his intention so to deny.

3:2       Consideration of the Evidence presented.

The period of absence in January 2016 was for 27 calendar days. The Complainant in his oral evidence maintained that the reasons for the period of absence were never explained to him and there was never any suggestion of a break in service occurring. He was Polish, his English Language skills in January 2016 were limited and he accepted as fact what the Employer stated. The P45 and the reasons for same he did not understand at the time.

In his presentation he struck me as a person on integrity and I accepted his evidence.

I asked him to produce what Documentation he could for the Period disputed and he submitted a Social Welfare record for the periods 2014 to 2019 that confirmed his employment was as stated.

The Liquidator, in correspondence, accepted that the Complainant had been employed in the disputed period but could not comment, for lack of information, on the January 2016 period.

3:3         Conclusions.

Unfortunately, the reasons for the January 2016 break in service are unknown save for the Complainant’s evidence. The former Principal, Mr.X, did not give any evidence. The former Wages Person of Company A submitted the January 2016 P45 but had no further explanations.

On balance and considering the evidence from the Complainant I came to the conclusion that, for the purposes of the Redundancy Payments Act, 1967 the service from the 13 October 2014 (the date submitted on the WRC Complaint form) to the 5th January 2016 be accepted as reckonable service for the calculation of the Redundancy Lump Sum.

The Redundancy Lump Sum already issued will, of necessity, have to be recalculated in the Complainant’s favour.