Complainant

Respondent

Anonymised Parties

Craft Worker

Recruitment Agency

Representatives

none 

 Managing Director

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-00038921-001

27/07/2020

The Respondent is a recruitment Agency which had engaged the Complainant to work on an infrastructure site in Co. Wexford. When the work there was completed the Complainant’s, position was being made Redundant.

Note: This case was heard remotely due to the Covid pandemic. There were no issues with the hearing and all parties were given every opportunity to make their case.

The Complainant issued a Workplace Relations Complaint Form dated the 27th of July 2020 stating that he was entitled to Statutory Redundancy as his position was terminated and there was no more work provided by the Respondent. There was no written submission.

The Respondent denies that the Complainant was made Redundant and that it intended finding alternative suitable employment for the Complainant. There was no written submission.

I have carefully considered the evidence adduced by the parties herein.  The Complainant is a skilled carpenter/craftworker and he lives in Wexford. The Complainant was engaged by the Respondent recruitment Agency from in or around the 31st of July 2017. In particular, the Complainant was placed on a construction site providing for a by-pass around a large town in the South East of the Country. The Complainant does not recall having a Contract of Employment though he does know he provided his personal and Bank details to the Respondent and he was paid directly by that Company. The uncontested evidence is that the Complainant was being paid in excess of €700.00 per week.

The Complainant gave evidence that on Friday the 7th of February 2020 the Complainant was notified by text message (from a Mr QC based in the office) that he was no longer required for that job and would receive his final pay up to the 7th of February in due course.  The Complainant never returned to the workplace. The position ceased to be and was therefore redundant.

Mr JP on behalf of the Respondent gave evidence that the Complainant was on Notice that the job on the bypass site was coming to a close given that the road had been opened at the end of January. JP indicated that the Complainant always knew that the position was limited in time.

JP said that the Complainant continued to be on the books, and it was the intention of the Respondent company to try and find alternative employment for the Complainant and that a site in Wicklow had been earmarked as a potential alternative.

The Complainant completely rejects this evidence and says that he was not advised that the recruitment agency was actively looking to place him in a new position. He does not accept Mr QC rang him with the Wicklow alternative.

I accept that the Complainant believed his employment had been abruptly terminated as of the 7th of February. There is no evidence to suggest that the Complainant was formally advised by his employer that he continued to be on the Respondent’s books as an employee (presumably in a state of lay-off) waiting to be placed in another position. I believe the onus to provide clarity firmly rests with the Employer in such circumstances. The proposed arrangements for the Employee should be readily identifiable by means of a document or letter or other text. There was none here.

As it happens, the Complainant whose skillset is clearly in demand, secured alternative employment, closer to his home, shortly after the termination of his employment.  On balance I am satisfied that the Complainant’s position was made redundant and he is therefore entitled to have a Redundancy payment. Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist.  The Complainant herein worked in excess of the 104 weeks stipulated. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. Redundancy payment is tax free.

I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence:

The employment started: 31st of July 2017

The employment ended: 21st February 2020

Gross weekly wage: €761.00

In calculating Service, I am including a two-week notice period to which the Complainant was entitled on notification of the termination of his employment. It is noted that the Complainant never brought a claim for payment in lieu of Notice.

The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. The Complainant withdrew her claim under the Unfair Dismissals legislation.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038921-001

The Complaint is well founded, and a Redundancy Payment is due to the Complainant based on the following information

The employment started: 31st of July 2017

The employment ended: 21st February 2020

Gross weekly wage: €761.00