Complainant

Respondent

Anonymised Parties

An Employee

A Respondent

Representatives

  In person

In person

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-00038748-001

16/07/2020

The Complainant submitted a claim on 16th of July 2020 in respect of his entitlement to a redundancy payment on 23rd of June 2020 on which date his position with the respondent became redundant.

The Complainant contends that he is entitled to a redundancy payment as the Respondent notified him on 19th of March 2020 that his position was to be made redundant on 23rd of June 2020 and that he would be entitled to a redundancy payment in this regard.

The respondent submits that the complainant’s position was made redundant but submits that he left their employment to take up another opportunity before his position became redundant.

Section 7 of the Redundancy Payments Act 1967 provides:

7 – (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment …

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to –

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish”.

The complainant advised the hearing that he had been employed by the respondent from 6th of December 2017. The complainant advised the hearing that he was employed by the respondent but was based on site with Company B.   The complainant advised the hearing that he was notified in writing by the respondent by letter dated 19th of March 2020 that his position was to be made redundant on 23rd of June 2020 and that he was advised in this letter from the respondent that he would be entitled to a redundancy payment in this regard.   The respondent at the hearing did not deny this and acknowledged that the complainant had been employed by them during this period and there was no dispute raised in respect of the employment relationship.

The complainant advised the hearing that he later applied for and secured a job directly with Company B who had advertised a number of direct employment positions.   The complainant commenced employment with Company B on the 22nd of June 2020.

The complainant told the hearing that he did not receive his redundancy payment from the respondent which was due to him on the 23rd of June 2020. The respondent at the hearing did not dispute this and stated that the reason for this was that the complainant had left their employment before the redundancy date and had commenced employment with Company B on the 22nd of June 2020. The complainant was due to receive his redundancy from the respondent on 23rd of June 2020.

The respondent at the hearing did not dispute that the complainant had been employed by them up to the point where his position became redundant.   The respondent did not claim to have offered the complainant alternative employment and did not claim to be the same employer as Company B.   The respondent also acknowledged that the position which the complainant applied for and attained was not related to their employment. The fact of the complainant applying for and securing a job with Company B was unrelated to the respondent and both parties agreed this at the hearing.

The respondent at the hearing sought to assert that the complainant left its employment before the redundancy took place and that he has thus no entitlement to the redundancy payment.   In addition, the respondent asserts that the complainant found alternative employment working directly for Company B the employer with whom the respondent had initially placed him. The respondent at the hearing stated that the complainant would have been paid his redundancy payment by them but for the fact that he had secured another job with a different employer starting on the day before he was due to receive his redundancy payment from the respondent.

It appears from the evidence adduced that this matter also falls under Section 10 of the Redundancy Payments Act 1967 which provides for a situation where an employee is on notice of redundancy from his employer and who secures alternative employment during the notice period provides a counter notice to the employer of his intention to commence that alternative employment in the intervening period. Section 10 states as follows

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

(a) an employer gives notice to an employee to terminate his contract of employment, and

(b) at a time within the obligatory period of that notice, the employee gives notice inwriting to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire.

(2) Subject to subsection (3), in the circumstances specified in subsection (1) the employee shall, for the purposes of this Part, be taken to be dismissed by his employer, and the date of dismissal in relation to that dismissal shall be the date on which the employee’s notice expires.

(3) If, before the employee’s notice is due to expire, the employer gives him notice in writing—

(a) requiring him to withdraw his notice terminating the contract of employment as mentioned in subsection (1) (b) and to continue in the employment until the date on which the employer’s notice expires, and

(b) stating that, unless he does so, the employer will contest any liability to pay to him a redundancy payment in respect of the termination of his contract of employment,

but the employee unreasonably refuses to comply with the requirements of that notice, the employee shall not be entitled to a redundancy payment by virtue of subsection(2).

(3A) Where an employer agrees in writing with an employee to alter the date of dismissal mentioned in a notice under subsection (1) (a) given by him to that employee so as to ensure that the employee’s notice under subsection (1) (b) will be within the obligatory period in relation to the notice under subsection(1) (a), the employee’s entitlement to redundancy payment shall be unaffected and the employee shall, for the purposes of this Part, be taken to be dismissed by his employer, the date of dismissal in relation to that dismissal being the date on which the employee’s notice expires.

It is clear from the evidence adduced that the respondent in this case was notified of the complainant having secured alternative employment and of his intention to commence that employment prior to the redundancy date of the 23rd of June.    An email from the respondent dated 12th of June 2020 which was submitted in evidence stated that the respondent was aware that the complainant was commencing in his new post on 22nd of June 2020 and also advised that his contract with the respondent would come to an end on the 21st of June 2020. No evidence was presented to suggest that the respondent had objected to the complainant commencing the alternative employment prior to the redundancy date.

Having considered the totality of the evidence presented to me, I find that the respondent had advised the complainant of the intention to make him redundant and had notified him of the date and circumstances of such redundancy and I am satisfied that the complainant on that date was no longer employed by the respondent. In addition, I am satisfied that the complainant is entitled to rely on Section 10 thus ensuring that his entitlement to his redundancy payment was unaffected by his having obtained alternative employment and I am satisfied that the respondent provided him with an alternative termination date two days earlier than the previous date of 23rd of June 2020.

Considering all the circumstances, I find that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

Having considered all of the information presented to me, I am satisfied that the complainant has established the existence of a redundancy situation and that the complaint is well founded.

I find that the Complainant is entitled to a statutory redundancy payment based on the following:

The employment started: 6th of December 2017

The employment ended: 21st of June 2020

Gross weekly wage : €1,127.08

The entitlement to a redundancy payment is based on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Statutory Redundancy