Complainant

Respondent

Parties

Aidan  Daly

Fastnet Recruitment Limited  t/a The Talent Group

Representatives

  Self-Representative

Jennifer O’Brien, HR Manager

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-00043596-001

14/04/2021

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.

Both parties were advised of the implication of the recent Supreme Court decision in Zalewski v Adjudication Officer and WRC [2021] IESC 24 and in particular the hearing of cases in public. It was accepted by the parties.  The parties agreed that there was no conflict of evidence, the evidence was based on agreed correspondence and therefore, no oath was administrated as provided for in the Redundancy Payments Acts 1967 – 2014.

Both parties were given ample opportunity to set out their case and ask questions of each other at the hearing.

The Complainant submitted a claim to the Workplace Relations Commission on 14 April 2021 in respect of his entitlement to a redundancy payment on 23 June 2020 on which date his position with the Respondent became redundant.

The Complainant stated he was made redundant from his job with the Respondent. On 3 December 2018, he was offered an extension to his fixed term contract of employment from 1 January 2019 to 27 March 2020.

On 20 December 2019, the Complainant received notification from the Respondent that his contract would end on 23 June 2020 instead of 27 March 2020.

On 19 March 2020, the Respondent wrote to the Complainant advising him that his contract would end on 23 June 2020 and on this date, he would be “entitled to a redundancy payment.”. Details of how the redundancy was calculated and he was advised the breakdown would be sent to him closer to his end date.

An email dated 12 June 2020 from the Respondent confirming the Complainant’s success in obtaining alternative employment and advising of his commencement date with the alternative employment.

The Respondent provided evidence of the correspondence provided to the Complainant and did not dispute his submission. The HR Manager advised that there was a pool of 13 workers who were on specific contracts similar to the Complainant’s contract. She outlined that redundancy payments were communicated to the Complainant. However, as he was successful in obtaining alternative employment “he did not suffer a loss” as there was “no break in his employment” the payment was not made to him.

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 Respondent explained that it assisted the Complainant with interview preparation ahead. The Complainant agreed this did happen. The Respondent stated there was no break in employment between his end date and start date in his new employment. Where a Complainant obtains alternative employment while on notice period of redundancy Section 10 of the Acts may apply:-

“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 in writing 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.”

The email of 12 June 2020 is relevant to Section 10. At all times the Respondent was on notice of the alternative employment and the Complainant’s intention to take up that employment on 22 June 2020 with his date of redundancy being 23 June 2020. It is noted that there was no notice of termination in this case nor did the Respondent object to the Complainant’s new employment. Consequently, I find that the Complainant’s job was made redundant and I accept that he was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

I have carefully 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 allowed.

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

Employment commencement date: 1 July 2015

Employment termination date: 21 June 2020

Gross weekly wage: €1,000.00

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.

Redundancy Payment – Alternative Employment – Well Founded