Complainant

Respondent

Anonymised Parties

A Casual Workers

A Sports Society

Representatives

  Self-Represented

The Chairperson

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-00033744-001

13/01/2020

The Complainant was a Cleaner who worked with the Respondent since 17 March 2014 on a casual basis. There was a dispute around the total hours worked per week, but the rate of pay was agreed at €10 per hour. The name of the Respondent was corrected at the hearing. The Chair of the Society appeared on beyond of the Respondent along with the General Manager.

It is the Complainant’s case that he did not receive redundancy payment that he says he was entitled to. The Complaint was submitted on 13 January 2020.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

The following is a summary of the main points put forward by the parties. The Complainant made several other claims in his written submission, but these are not properly before me and therefore, are excluded from this decision.

The Complainant was a student and worked during his holidays at the Respondent’s premises. He carried out various duties around the maintenance and cleaning of the stadium from 2014. He was paid €10 per hour and states that he normally worked from late Spring to early Autumn with occasional work when he was available. He states that at the end of each season he would be thanked and told that they would see him next year along with the other casual employees.

The Complainant set out in detail the weeks worked for each for year from 2014 to 2019. 

However, in 2019 he states there was no recall back to work. He did one weeks work in late summer 2019 to cover another employee’s annual leave. In his submission he further stated that he was given 117 hours in 2019 but argued that this outside of his usual time of seasons work and therefore “is irrelevant”. He states that a contract cleaning company was engaged to carry out work instead of work being offered to him. It is his claim that he was not provided notice of the change in which the work was scheduled, nor did he receive a P45 to confirm his work had ceased. This resulted him having to claim job seekers benefit and claims he was at a financial loss. At the hearing the Complainant claimed that he was a student teacher and did take up substitute teaching work in September 2019. He is now working full time since October 2020.

At the hearing it was submitted that he was asked if he was available for work in 2020 by the Manager but was not offered any work. He states in response to the Respondent’s point that he did not apply for work with the contract cleaning company because he was not made aware of that there was availability of work. He states that his father was his Supervisor, but it was not his responsibility to recruit casual workers.

The Complainant completed a RP77 Form and sent it to the Respondent. He states that this was ignored, and, on this basis, he proceeded with the claim.

The Respondent stated that the Complainant was not made redundant nor was his employment terminated. He continues to be an employee of the Respondent. The Respondent set out a description of the different type of work carried out at the stadium which was split between casual and permanent staff. It was accepted that the contract cleaning company was engaged to carry out work which was referred to after match cleaning following large attendance at games or Category B work. The Complainant continued to be engaged to carry out Category A or general maintenance work. The nature of the business was outlined and how busy it was depended on the schedule of matches each season. In 2019 there were only 2 major games in the stadium and all available Category A work was given to the Complainant in 2019 over any other casual worker.

The Complainant’s statement around his normal hours of work was disputed by the Respondent. It was submitted that due to the casual nature of the work the hours were variable, and it could not be said that he worked 39 hours a week with a weekly gross of €390.

The Respondent also disputed that the Complainant stated in the Complaint Form he was only given one week’s work in 2019, instead stating he was given a total 117 hour according to the payroll records.    The hours he worked were listed as in February, March and August 2019.

The Respondent accepted that while the Manager asked the Supervisor to inform the Complainant about the availability of work with the contract cleaning company, there appears this did not happen and accepted this was an oversight. In 2020 the Manager offered the Complainant work but states he declined and also advised him that there was casual work with the contracting cleaning company available for him.

In order to come to a decision in this case each step of the redundancy test must be looked at in sequence. The first step is to look at the general right to redundancy which is provided for in S.7 of the Redundancy Payment Act 1969: -

“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 provided

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date”.

S.7 (5) defines the requisite period: -

 “(5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.”

The Complainant, as a causal, worker, does fall within the s. 7 (1) by virtue of s. 4 of the Redundancy Payment Act 2003 which extends to class of worker to include casual workers who would be insurable for all benefits under the Social Welfare (Consolidation) Act 1993.

The next question to be answered in this case is whether the Complainant was dismissed from his employment. The Respondent repeatedly stated he has not had his employment terminated and continues to remain on the payroll.

S. 9 of the Redundancy Payments Act 1969 clearly sets out what is considered as dismissal in a redundancy situation: -

“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, or

(b) where under the contract under which he is employed by the employer he is employed for a fixed term, that term expires without being renewed under the same or a similar contract, or

(c) the employee terminates the contract under which he is employed by the employer without notice in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.”

It is also necessary to consider S.12 of the Act around lay off or short time: -

“12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless 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.”

The Complainant confirmed he was never given notice that his employment terminated. Neither party raised the issue of short term of lay off nor did the Complainant give written notice to the Respondent in respect of his intention to claim redundancy payment in respect of lay off or short term as required under s. 12 (1) of the Act.

While there is no legal requirement on the part of the Complainant to raise his concerns with the Respondent in the first instance, it does appear from the evidence before me that matters would have been easily clarified between the parties if a practical approach was taken and the parties simply spoke to each other prior to taking any steps.

The first notification received by the Respondent was when the Complainant sent a RP77 Form to the Respondent in November 2019. This was ignored by the Respondent initially but there was communication between the parties thereafter in early 2020 which involved the Respondent asking if the Complainant was available for work in 2020. It is accepted that the Complainant was not offered work thereafter but the Respondent’s explanation that this was due to the impact of Covid19 had on matches and events.

The RP77 Form is reserved for employees who have received (i) Notice of proposed dismissal for Redundancy or an RP50 Form (Part A) and Part B of Form RP50 from the employer but not a lump sum or where an incorrect lump sum was received. Alternatively, in the event an employee receives a favourable decision from the Workplace Relations Commission. The RP77 is not intended as a first port of call for an employee who believes he was made redundant. This is clearly indicated on the cover sheet of the Form.

Having carefully considered the above circumstance I find that the Complainant has not been dismissed from his employment with the Respondent. He did work in 2019 when the work was available to him and was given all casual hours available over other casual workers. Consequently, where the Complainant was not made redundant and therefore, not entitled to a redundancy payment.

I disallow the Complainant’s appeal.

Redundancy Payments – Casual Worker- disallow Complainant’s appeal