FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : MCGUIRE HAULAGE LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED) - AND - DESMOND FARRELL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No'sADJ-00026100, CA-00033053-001 Background The Appellant was employed as a driver with a predecessor Company and then the Respondent from January 1996 having transferred to the Respondent under a transfer of undertakings. The Appellant contends that his employment terminated by way of redundancy following lay off. The Appellant was removed from his role on a client site on or about 24thJune 2019 arising from a decision of the client to disallow the Appellant entry to their site. The Respondent at that time offered the Appellant alternative work on a site in Dublin but the Appellant indicated that he would be unable for practical reasons to take up that proposed role. The Appellant has remained without work since that date. The Appellant submitted an RP9 form to the Respondent on 19thNovember 2019 indicating an intention to claim redundancy following lay-off in accordance with Section 12 of the Act. The Respondent did not respond to the service of an RP9 form and has maintained that the Appellant was never laid off within the meaning of the Act. At the hearing of the Court the Respondent, in answer to a query from the Court, described the Appellant as an employee without work. The Law The Act at sections 11 and 12 provides in relevant part as follows: 11. Lay-off and short-time (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. 12. Right to redundancy payment by reason of lay-off or short-time(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. Discussion and ConclusionsIt is a condition precedent for the operation of Section 12 of the Act that an employee, at the date of service of a notice of an intention to claim, has been laid off. Section 11 describes the conditions which must be met in order for an employee to be regarded as laid off within the meaning of the Act. In the within matter the parties dispute whether the Respondent was unable to provide the work for which the employee was employed. In addition, no submission has been made to the effect that the Respondent believed at any material time that the cessation of employment of the Appellant would not be permanent or whether any such belief would have been reasonable. Finally, it is common case that the Respondent did not, prior to the cessation, give the Appellant notice to the effect that the cessation of his employment would not be permanent. The Act is very clear in respect of the matters before the Court and the Court must address the within appeal strictly in accordance with its provisions. It is common case that, in the within matter, the requirements of the Act at Section 11(1)(b) have not been met. It is clear also that the requirements of Section 11(1)(a) have not been met. In those circumstances the Court must conclude that, by operation of the law, the Appellant was not at any material time laid off within the meaning of the Act at Section 11. This conclusion is reached notwithstanding that the Appellant, while remaining an employee according to the Respondent, has not been engaged in work for the Respondent since 2019. In those circumstances, having regard to sections 11 and 12 of the Act, the Court is obliged to find that the Appellant is not entitled, by operation of the Act, to a statutory redundancy payment in accordance with the Act by reason of lay-off. Decision The Court decides that the Appellant is not entitled to a statutory redundancy payment by reason of lay-off. The decision of the Adjudication Officer is affirmed. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary. |
