Complainant

Respondent

Anonymised Parties

A Steel Fixer

A Construction Company

Representatives

Appeared in Person

No Appearance by or on behalf of the Respondent

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-00016113-001

04/12/2017

This claim for Redundancy was first lodged in December 2017. The case comes or hearing on foot of the complainant having been a witness in the Conjoined case of ADJ-00012161. Decision dated September 28,2018.

There was no appearance by or on behalf of the Respondent. No reason has been received for the non-attendance of the Respondent.

The Complainant outlined that he had worked with the Respondent as a Steel Fixer from 4 May 2015 until 19 May 2017 on a 45-hour week in return for €700 per week.

The Complainant submitted that the identical arrangements as pertained to his colleague in ADJ-00012161 pertained to him and he was seeking a lump sum redundancy payment.

The Complainant outlined that his employment was transferred to an Agency on 19 May 2017. He understood that this was to be a short-term measure for a few weeks. However, it lasted until his sudden termination of employment on 11 August 2017. His P45 from the Respondent company was passed to the named Agency, where he received the same pay.

The Complainant did not have a contract of employment but submitted a two-page chronology 2011 -2017 of payments received and tax paid. This catalogued a 4-week work history with the Respondent in 2013 ,52 weeks in 2015, 2016 and 19 weeks in 2017.

The Complainant also submitted a Copy of ADJ-00012161 and reaffirmed that the circumstances of the case were identical to his case.

When asked if the Company was still trading, the Complainant submitted that he understood they were operating in the Dublin area.

There was no appearance by or on behalf of the Respondent. The Respondent has not filed a defence in the case and has not submitted any reason for their non-attendance.

I asked the Complainant I he could explain the gap in time between the hearings in ADJ-00012161 and the instant case. He was unable to throw any light on the matter as the complainant in ADJ-00012161 and the instant case had the same employment experience and filed their complaints on the same day.

I listened carefully to the Complainant and am satisfied that he is the same gentleman who I met as a witness in ADJ-00012161.

I accept that there is a strong overlap in the facts of the case, however, the complainant has some additional past service with the Respondent.

I am satisfied that the Respondent is the correct employer in accordance with Section 2 of the Redundancy Payments Act, 1967.

I could not establish if any employment documentation was transferred to the Agency. The Complainant was asked to transfer on a short-term basis to facilitate a business transaction.

As in ADJ-00012161, I continue to remark on the dearth in employment documentation in this case

“………Based on the balance of probabilities and the evidence before me, I must identify the Respondent as the employer in this case. I could not establish details of a bone fide transfer or any documentation in support of same. I appreciate that the complainant commenced work for the Agency without appealing the transfer decision, however, I am struck by the act that his agreement was assumed rather than secured and this puts the voluntary transfer at the 106th week of continuous employment into an area of considerable doubt for me “

For the purposes of Redundancy Payments Acts an employee is dismissed due to Redundancy if “for one or more reasons not related to the employee concerned, his dismissal is attributable “wholly or mainly “to one of the five situations outlined in Section 7(2) of the Act.

The Complainant in this case was not permitted to return to the Respondent employment. He did not anticipate having his job terminated a short number of weeks later. He submitted a statement of service signed by the Agency dated August 2018 which reflected excellent work.

Section 9(1) Dismissal by employer.

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice,

As in ADJ-00012161, I have gone on to consider Section 9(3) of the Act as a possible exception to this.

Section 3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if—

(I) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment,

(ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer,

(iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which—

(A) sets out the terms and conditions of the employee’s contract of employment with the new employer,

(B) specifies that the employee’s period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer,

(C) contains of the service mentioned in clause (B), and

(D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.

As stated in ADJ-00012161, this requirement places an onus on the Respondent to preside over a formal exchange of documents between Employer 1 and Employer 2 which reflect employee consent. I did not have the benefit of sight of any documentation which would safely allow me to conclude that any of the terms of Section 9(3) had been fulfilled in this case. The Complainants dismissal has therefore not been negated.

I find that a dismissal occurred in this case for want of full compliance with the essential components of Section 9 of the Act. I also conclude that this dismissal is a redundancy as defined in Section 7 (2) (c) of the Act.

I would strongly urge this Employer to have regard for the statutory requirements contained in Section 3 of the Terms of Employment (Information) Act 1994, as amended.

The Claim is well founded.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complainant was dismissed by reason of redundancy and is entitled to receive a lump sum redundancy payment calculated on the following criteria.

Date of Commencement: 4 November 2013

Date of Termination: 19 May 2017

Breaks in Service: 23 November 2013 – 3 May 2015

Gross Weekly Pay: €700 nett

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

Redundancy