Complainant

Respondent

Parties

Marcel  Miklos

Mhl Facilities Services Ltd

Representatives

none 

none 

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-00035189-001

11/03/2020

The complainant submits that he was entitled to redundancy payment and the respondent did not pay redundancy payment.

The complainant submitted that he commenced employment on 12 April 2011 and that he worked in the area of security and maintenance at various locations.  During 2019 he worked across a number of locations, with varying hours working on average 55 hours weekly and at the end of 2019 he was working at Site A.

Around 17th December 2019, the complainant was advised that there was no more work available at Site A, and he ceased working around 22nd December 2019.  On 6th January the complainant was offered 25 hours work at Site B and did not accept this as he wanted full time work and was unhappy with the nature of the work.  The respondent offered him a further 25 hours work on 14th January at Site C and the complainant did not accept this as he wanted full time work and was unhappy with the nature of the work.

At a date unknown to the complainant but probably 3rd February 2020, the complainant completed the first page of RP9 and sent the respondent the full RP9 to put the respondent on notice of his intention to seek redundancy payment owing to lay off.

On 21st February 2020 the complainant was offered work at Site D in a general operative role, but the complainant did not respond to the respondent as there was no full time work offered.  On 11th March 2020 the complainant submitted his complaint to the WRC.

The respondent denied that a redundancy situation arose.  The respondent submitted that the complainant was offered contracts that he would not accept.  The nature of the business is that neither the nature of the work nor the hours are guaranteed and that it is not unusual to work across a number of sites which the complainant did.  The complainant had been given a contract of employment which set out the nature of the respondent’s business and the respondent provided a generic copy of this contract at the hearing which provided for lay-off and/or short-time.

The complainant had worked as a security operative/general operative at Site A up to 22nd December 2019.  It was regrettable that the work there was no longer available.  On 6th January 2020 the complainant was offered 25 hours cleaning work at Site B and on 14th January the complainant was offered 25 hours cleaning work at Site C.  The complainant rejected both these positions which would have brought his working hours to 50 hours.

At a date unknown but probably 3rd February, the respondent was surprised to receive the RP9 from the complainant as he had offered him work that he had refused.  The respondent replied on the 5th of February 2020.  On 21st February 2020 the complainant was offered work at Site D in a general operative role, but the complainant did not respond to the respondent.  On 21st March 2020 the complainant was offered 30 hours work per week for approximately 6 weeks at Site E.  It was submitted that over 10 weeks, 4 different job opportunities were offered to the complainant which were rejected or which the complainant did not engage with.

Copies of text messages exchanged between the respondent and complainant were provided which set out the offers of work provided to the complainant.  The text message dated 21st February sets out a guaranteed 4 months’ work working as a general operative across 3 shifts.

A hearing took place on 29th January 2021 and following the submission of additional information, a further hearing was necessary which took place on 23rd April 2021.

Following delivery of the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021, and the consequential orders made on foot thereof on 15 April 2021, a number of procedural changes were required to procedures at the WRC hearing of 23rd April 2021.  

As a result of the judgment, in adjudicating upon most employment and equality rights claims, Adjudication Officers and members of the Labour Court are deemed to be administering justice that is, exercising limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution.  The Supreme Court held that it was incompatible with the administration of justice for there to be a blanket prohibition on hearings in public before an adjudication officer and it declared that sections 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977, as amended, are unconstitutional.  It was also held by the Supreme Court that the administration of the oath and the possibility of punishment for giving false evidence are an important part of ensuring that justice is done, in cases where there is serious and direct conflict of evidence.  The WRC has the power under section 39(17) of the Redundancy Payments Acts 1967 to administer an oath/affirmation in redundancy complaint hearings and as there was a single complaint submitted under such legislation, the hearing on 23rd April 2021 could proceed in public. 

Parties were advised of the above and an adjournment was offered for parties to consider same and submit if they wished to proceed with a de novo hearing or seek a further adjournment.  Parties advised that they did not wish to adjourn, that they wished to proceed with evidence under affirmation, with the hearing open to the public, aware that the names of the parties may no longer be anonymised and that the hearing would proceed on the 23rd of April 2021 as a de novo hearing.  Parties were advised that cross examination has always been available before the WRC, as reflected in the Guidance Note for a WRC hearing and that parties had the opportunity to cross examine evidence given at the hearing. 

The nature of the complainant’s employment and others in the workplace was that he often worked at various locations, doing various roles, working various hours.  In December 2019 the complainant was notified that the contract had ceased at Site A.  On 6th January the complainant was offered 25 hours work at Site B which he did not accept.  On 14th January 2020 the complainant was offered 25 hours work at Site C which he did not accept.  The complainant submitted that he wanted full time work and the respondent submits that it was implied that the complainant would have been able to work both roles which the complainant disputed. 

Section 11 sets out under Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

 (2) Where —

(a) for any week an employee’ s remuneration is less than one-half of his normal weekly remuneration, or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.

The respondent disputed the complainant’s claim that he earned approximately €680 weekly and also disputed that the complainant worked an average of 55 hours weekly. The complainant’s weekly hours varied and s. 20 of Schedule 3 of the Acts is applicable to the calculations required.  

“For the purposes of this Schedule, in the case of an employee who has no normal working hours, his normal weekly remuneration shall be taken to be the average weekly remuneration, including any bonus, pay allowance or commission, received by the employee concerned over the period of 52 weeks during which he was actually working immediately prior to the date on which he was declared redundant.”

The respondent provided details of the hours and wages made to the complainant throughout 2019 and although the respondent’s submission lacked clarity on the specific hours worked by the complainant, it does appear that the complainant worked an average of 52 hours weekly and earned €645.71 per week. 

At a date unknown to both the complainant and the respondent, but around early February 2020 and which shall be identified as highly likely to be February 3rd, 2020, the respondent received an RP9 form from the complainant.  I note that only page 1 of this form was completed, and I also note that it is not a statutory form as determined by the Labour Court in MCR Outsourcing Ltd v Con O’Brien (RPD1915).  It is also noted that the respondent does not appear to have been prejudiced by the failure of the complainant to fully complete this form.  The respondent acknowledged receipt of the RP9 on 5th February, submitted at the hearing that he understood its purpose, and the respondent responded advising that the contract at Site A had finished owing to the return of two employees and that the complainant had been offered alternative employment.  The respondent advised the complainant to make contact with the respondent regarding alternative work. 

Section 12 sets out the Right to redundancy payment by reason of 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 —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, 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.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Section 13 sets out the Right of employer to give counter-notice.

13.— (1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

I am satisfied, therefore, that the complainant was on lay off as defined by the Act, notified the respondent of his intention to claim redundancy and that the respondent by his response made efforts to give counter notice to the claim by the complainant.

By text message on 21st February the respondent offered the complainant a minimum of 4 months works, working 3 shifts 6am-230pm, 830am-430pm, 2pm-1030pm.  The complainant’s understanding from this text was that he would only have 3 shifts per week therefore approximately 24 hours work per week.  The respondent submitted that it was clear from the text that the complainant would have full time hours and would work over 3 different shift options.   The complainant responded on 13th March that he had referred his complaint to the WRC.  

In Leinster Cleaning Services v Arunis Muningus (RPD199), the Labour Court set out that

“an employer who seeks to defeat an employee’s well-founded claim for redundancy in a lay-off situation must take such steps as will permit the employee to form a reasonable expectation “that not later than four weeks after [the date of the employer’s counter-notice, the employee would] enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.””

Following the complainant’s claim for redundancy, in what was a lay-off situation, as defined by the Act, the respondent did offer other work to the complainant of greater than thirteen weeks, but the respondent failed to provide reassurances that the complainant “would not belaid off or kept on short-time for any week”.   As set out by the Labour Court the respondent “did not clearly and unequivocally communicate to the Complainant any such assurance”.

Having heard the evidence under affirmation, in public and allowing for cross examination of evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Start date:                        12th April 2011

Termination date:           3rd February 2020

Weekly gross pay:           €645.71

Period of lay-off:             23rd December 2019 to 3rd February 2020

These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Start date: 12th April 2011

Termination date: 3rd February 2020

Weekly gross pay: €645.71

Period of lay-off: 23rd December 2019 to 3rd February 2020

These awards are made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy