Complainant

Respondent

Anonymised Parties

A Driver / Installer

A Company

Representatives

 none

none 

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00032572-001

28/11/2019

The Complainant worked for the Respondent from 3rd July 2012 to 31st March 2018.

He referred his complaint to the WRC on 28th November 2019 claiming that he did not receive any redundancy payment.

The Complainant named an incorrect legal entity as the Respondent on the complaint referral form when initiating a complaint before the WRC. The Complainant asserted at the hearing that it was a typographical error in result of which one word in the name of the Respondent was replaced by another word. The Complainant made an application pursuant to Section 39 of the Organisation of Working Time Act 1997 to amend the name of the Respondent in the instant proceedings.

The Respondent did not object to an amendment of the information contained on the complaint referral form to allow the substitution of the name of the correct employer.

In considering this issue, I have taken cognisance of the Labour Court case of Auto Depot Limited v Vasile Mateiu UDD1954. In this case the complainant made an application in the course of proceedings before the Labour Court under the Unfair Dismissals Act to amend the name of the respondent from “Auto Depot Tyres Ltd” to “Auto Depot Ltd”. The Court allowed the request for amendment and in doing so held that:

“Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’.”

The Labour Court provided an extensive analysis of the jurisprudence and relevant authorities on this subject and set out a number of factors which it took into consideration in arriving at its decision on this matter. In particular, I have taken cognisance of the following paragraphs:

“Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)…. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.” Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins. The Court is further satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

I note that the correct Respondent has submitted to the jurisdiction of the WRC. I am satisfied that the Complainant’s employer was fully informed as to the precise nature of the complaint from the outset of these proceedings. I find, therefore, that the Complainant’s employer would not be prejudiced by allowing the amendment of the name as requested.

In the circumstances, I find that the Respondent’s name can be amended to reflect its correct legal tittle.

The Complainant made an application for an extension of time in relation to his claim. He submits that he was informed of the redundancy in March 2018. He was provided with redundancy forms, which he signed in good faith around the time when the business ceased trading in March 2018.

As he received no correspondence in relation to his redundancy within the following months, he made contact with the Respondent. The Complainant submits that the Respondent informed him that he had spoken with his accountant and was informed that there was a delay with the payments. The Respondent claimed at the time that the information provided by his accountant was that the process could take up to a year to conclude. The Complainant submits that, having had no prior experience with a company ceasing operations he took it at face value and trusted that it would be resolved.

After around a year had passed the Complainant made contact with the Redundancy Section to query the status of his claim and was informed that there was no record of his claim in their system. After hearing this he again contacted the Respondent who was under the assumption that everything was being processed. The Complainant submits that after a while the Respondent contacted him again to arrange a meeting as “he had figures” for his redundancy and required the Complainant’s signature on a form. The Complainant met with the Respondent and signed the required forms. He was told that everything was sorted out. The Complainant submits that the next correspondence he received was a letter from the Redundancy & Insolvency Payments Section stating that they were withdrawing his claim for redundancy. The Complainant submits that it was the first time he heard that there was any problem with the claim.

The Respondent submits that his accountant submitted the original redundancy claim on 25th April 2018. The Respondent was not unduly concerned as he was informed by the accountant that it could take up to a year to complete the process. He claims that he, at no stage received anything from the Redundancy and Insolvency Payments Section to indicate any issues with the claim.

In July 2019 the Respondent’s accountant followed up with the Redundancy and Insolvency Payments Section and was advised that there was no record of his redundancy claims. The Respondent claims that on 24th July 2019 the forms were resubmitted to the Department of Employment Affairs and Social Protection (DEASP). On 25th July 2019 the DEASP wrote to the Respondent informing that the forms submitted have been obsolete since late 2011. The Respondent submits that on 23rd August 2019 his accountant sent online forms to the Respondent and to the Complainant for signing and the accountant subsequently submitted the forms to the DEASP on 25th September 2019. On 27th September 2019 the Respondent received a reply from the DEASP advising that correspondence would be sent to the Complainant advising that the redundancy claim was out of date and that the Complainant should apply to the WRC for an extension of time. On 7th November 2019, the Respondent received an email from his accountant outlining the original issues with the obsolete forms. On 27th November 2019 the letter the Complainant had received from the DEASP was forwarded to the accountant. The Respondent submits that the accountant advised that the next step as per the letter from the DEASP should be for the Complainant to submit a claim with the WRC. The Respondent agreed that he should have paid more attention to the matter. He noted that it was an unfortunate delay by the accountant.

Section 24 of the Redundancy Payments Act, as amended stipulates as follows:

24. Time-limit on claims for redundancy payment

(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment–

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he or she has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he or she is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General–

(a) that failure to make   a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his or her ignorance of the identity of his or her employer or employers or by his or her ignorance of a change of employer involving his or her dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his or her proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

The Complainant’s employment was terminated on 31st March 2018. Therefore, the initiating complaint referral form should have been submitted by 30th March 2019. The within claim was referred to the WRC on 28th November 2019 and therefore, outside the period of 52 weeks beginning on the date of dismissal or the date of termination of employment.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

In this regard, I note the Labour Court Determination in Clint Maguire v P J Personnel Ltd AWD201 where the Labour Court held that:

“The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

‘The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.’

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Respondent did not contest the Complainant’s evidence that the Respondent inadvertently misrepresented to him, on advice of the Respondent’s accountant it appears, that he would receive all his entitlements. The Complainant accepted the Respondent’s explanation in relation to the delay and the assurances that the matter was being looked after. I note that the employment relationship ended amicably, and the Respondent emphasized at the hearing that the Complainant was a good worker and the Respondent would have hoped that all would go “as smoothly as possible” for him. The Complainant also commented on the good relationship with the Respondent and noted that he trusted the Respondent. The Complainant had no reason not to have confidence in the Respondent and his accountant to deal with the matter. Particularly, given the assurances received along the way from the Respondent. It was only when the Complainant received a letter from the Department of Employment Affairs and Social Protection (DEASP) dated 25th November 2019 informing him of the withdrawal of his claim that he realised that the matter had not been dealt with in an appropriate manner. The Complainant immediately attended to the matter and referred his claim to the WRC on 29th November 2019.

In Alert One Security v Taimoor Khan DWT1572 the Labour Court held:

“In general, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to those rights, cannot be accepted as excusing a failure to comply with a statutory time limit. In the instant case the Claimant is not relying on ignorance of the law, per se. Rather, as the Court understands it, he is relying on the combined effect of his lack of knowledge of how to process a claim and on the assurances given to him by the Respondent that he was either receiving his legal entitlements or that those entitlements would be met by the Respondent. In that regard it is well settled that material misrepresentation by a party, which caused or contributed to a delay in initiating a claim can constitute reasonable cause which both explains the delay and provides a justifiable excuse for that delay.

In all the circumstances the Court is satisfied that the Respondent’s misrepresentations to the Claimant constitute reasonable cause for the delay in presenting the within claims.”

Taking all the foregoing into consideration, I decide to extend the time limit for submission of a claim for redress under the Redundancy Payments Act.

The Complainant submits that he was working for the Respondent from 3rd July 2012 to 31st March 2018 when he was made redundant. He was paid €546 gross per week. He claims that he did not receive any redundancy payment.

The Respondent conceded that the Complainant was employed by the Respondent from 3rd July 2012 to 31st March 2018 when he was made redundant. He was paid a weekly salary of €546 gross.

The Respondent agreed that, due to the delay in submitting the relevant forms to the DEASP, the Complainant did not receive his entitlements in respect of redundancy.

Having considered all evidence presented to me by the parties, I find that the Complainant was employed on a continuous basis with the Respondent from 3rd July 2012 until 31st March 2018 when his employment was terminated by reason of redundancy following the closure of the Respondent’s business.

I allow the Complainant’s appeal. I find that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: 

-          Date of commencement: 3rd July, 2012

-          Date of termination: 31st March, 2018

-          Gross weekly wage: €546

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy – time extension – misrepresentation