Complainant

Respondent

Anonymised Parties

Process Operator

Manufacturing Company

Representatives

Brian Foley OTF Accountants Limited

self 

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-00039733-001

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039733-002

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00039733-003

10/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039733-004

10/09/2020

The Complainant commenced work with the Respondent as a general process operator on the 17th February 2015 until the claimed termination of employment on the 25th June 2020. His weekly gross salary was €393.90; net €363 for a 39-hour week. The Respondent denies all complaints made.  

CA-00039733-001 Section 39 of the Redundancy Payments Act,1967-2014:

The Complainant submits that he received a letter from the Respondent on 18th June 2020 stating that the Respondent had no choice but to let him go due to a loss of a customer contract.  He submits that he received one weeks’ notice from the Respondent who also issued him with his outstanding holiday pay. He believes he was one of two employees made redundant at that stage.

The Complainant submits that he did not receive a Form RP9 nor did the Respondent make it clear to him that the purported lay-off was temporary. The Complainant submits that he did not request his holiday pay.

The Complainant’s representative wrote to the Respondent requesting information on 8th July 2020.  The Complainant submits that his representative received a telephone call from the Respondent and a subsequent email stating that he (the Complainant) had not been made redundant and offering instead to the Complainant an opportunity to return to work. The Complainant submits he did not return to work as he felt his position was completely compromised, considering the way he was treated by the Respondent and his subsequent claim for his entitlements. The Complainant asserts that he believes he was singled out from his other colleagues and that the Respondent took the opportunity to let him go. He also believes that the Respondent attempted to reverse its decision when he sought professional advice.

CA-00039733 – 002 Complaint under section 7 of the Terms of Employment (information) Act 1994.

The Complainant submits that he never received a contract of employment nor did he receive a written copy of his terms and conditions of employment under section 3 of the Terms of Employment (Information) Act 1994. 

CA-00039733-004 Complaint under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant submits that he had been more than 5 years in employment with the Respondent when he received his purported notice of redundancy on 18th June 2020. He submits that he received 1 weeks’ notice at that time therefore he is entitled to the balance of 3 weeks wages in lieu of minimum notice.

CA-00039733-001 Section 39 of the Redundancy Payments Act,1967-2014:

The Respondent submits that he never intended to make the Complainant redundant, but rather to lay him off instead for a temporary period. This was due to the loss of a contract with a main customer. The Respondent submits that a reading of the letter titled “lay-off” and the use of the word ‘currently’ in relation to the lack of availability of work for the Complainant, suggests that the situation was temporary as distinct from permanent. The Respondent further submits that the subsequent offer to re-employ the Complainant points strongly towards a lay-off situation as distinct from redundancy.

Mr A, a manager with the Respondent company who had everyday contact with the Complainant, gave evidence that the reason the Complainant received his full holiday pay entitlement when he was laid off was because the Complainant had asked for this sum to be paid.

The Respondent gave evidence that the work previously carried out by the Complainant, had been carried out since by other members of staff.

CA-00039733 – 002 Complaint under section 7 of the Terms of Employment (information) Act 1994.

The Respondent refuted this complaint and produced a copy of a written statement of the terms and conditions of employment under the Terms of Employment (Information) Act 1994. It showed the signature of the Complainant acknowledging receipt of the statement on the 30th April 2015. This copy was made available for inspection at the hearing. The Complainant’s representative acknowledged that he had an opportunity to read the statement and to respond accordingly.    

CA-00039733-004 Complaint under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Respondent refuted the claim on the basis that the Complainant’s contract had not been terminated therefore there was no need to serve statutory minimum notice. 

CA-00039733-001 Section 39 of the Redundancy Payments Act,1967-2014:

The applicable law:

The general right to redundancy payment of the Redundancy Payments Act, 1967, as amended, provides as follows at section 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, 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 four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business 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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Section 15. Disentitlement to redundancy payment for refusal to accept alternative employment

(1) An employee shall not be entitled to a redundancy payment if

(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract.

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

There are two fundamental questions to be decided here. Firstly, the question as to whether the receipt of the original letter of notice, received by the Complainant on the 18th June 2020, and the subsequent purported termination of employment on June 25th, 2020, constituted a valid temporary lay- off situation or was it, in fact, a dismissal that justified a redundancy payment under section 7 of the Redundancy Payments Act 1967, as amended. Secondly, did the Respondent’s email of the 22nd July purportedly offering re-engagement to the Complainant, and the Complainant’s subsequent refusal to do so, disentitle him to a redundancy payment.

The notice letter of 18th June 2020 is clearly titled “lay-off” but this does not in itself absolve the Respondent. The contents of the letter must be studied together with the associated actions of the employer. The letter reads as follows:

“Re: Layoff

As you are aware, the major down term in business for XXXX. Accordingly, the Company is

not currently in a position to provide you with full time work due to circumstances beyond our direct control. As a direct result of this, the Company has had no option but to let you go, and you have one week's notice. The Company regrets that this course of action is necessary and understands the great hardship that will be caused to employees who are affected through no fault of their own.”

I note in this letter that outside of the title, there is no reference to the situation being temporary or advising that the business might pick up anytime soon. The tone of the letter points very much towards finality. The Respondent suggests that the use of the word ‘currently’ suggests that there may well be a pick up at some time in the future but there is certainly no elaboration upon this point. I find that the letter of notice is shrouded in ambiguity.  I note also that the Respondent did not issue an RP9 form (part A) which is used to advise an employee of temporary lay-off or temporary short-time. Though not obligatory, the use of such would have been more definitive.

The Respondent gave evidence that the Complainant’s job had not been filled then, nor has it been filled since, but has been done instead by other employees and members of management. This strongly suggests that the test for dismissal by redundancy under 7(2)(c) above has been satisfied. The Operations manager gave evidence that the Complainant requested his holiday pay in full in his final pay packet. The Complainant denied this. There may be a conflict on this point, but I found the Complainant’s evidence to be more convincing. This is not a pivotal point in the case, but the receipt of full holiday pay does indicate a termination of employment, as distinct from a suspension of employment, which is the case with a lay-off. I find on the balance of probabilities based on an interpretation of the notice letter and the undisputed fact that the complainant’s work was carried out by existing employees since, as per section 7(2)(c) above, that the complainant was dismissed by reason of redundancy and that it was a redundancy situation.

The next issue to be addressed is whether the refusal of a purported subsequent offer of reengagement disentitled the Complainant to the redundancy sum under section 15(2). This section basically states that if an employer offers an employee re-engagement and that re-engagement starts within four weeks of the termination of the contract, any reasonable refusal by the employee does not entitle him to a redundancy sum. The offer to the Complainant’s representative sent by email on 22nd July 2020 from the Respondent’s representative was as follows:

“…Having spoken to our client regarding the issue below, we would advise that as per the letter issued by the company on 18th June 2020, XX was notified of his lay-off due to a downturn in business activity. XX was not made redundant from YY LTD. It is the intention of the company to reengage XX within the next fortnight, and I suggest that XX contacts YY directly to discuss and arrange. Should you have any queries please contact this office.”

The offer of reengagement was refused by the Complainant at that stage. I find it difficult to reconcile the fact that there was an attempt to reengage the Complainant when there was no evidence of an upturn in business nor was the lost contract that originally led to the redundancy of the Complainant, recovered. Furthermore, the position of the Complainant was never subsequently filled. I can only conclude that such an offer was a direct response to the correspondence by the Complainant’s representative indicating an intention to lodge the complaints with the Workplace Relations Commission. Notwithstanding the foregoing, the 23rd July, which was the following day, was the deadline for engaging the Complainant under section 15(2). The email to the Complainant’s representative which reads “it is the intention of the company to reengage XX within the next fortnight” clearly indicates that the Complainant was not going to start the following day therefore I find that the refusal of the Complainant to be reengaged does not disentitle him to receipt of a redundancy sum.

Having considered all the evidence in this complaint I find that the Complainant was dismissed by reason of dismissal and is entitled to a Redundancy payment.

CA-00039733 – 002 Complaint under section 7 of the Terms of Employment (information) Act 1994.

The Complainant originally submitted that he did not receive a statement of his terms and conditions. However, when the Respondent showed him a copy in his possession that had the signature of the Complainant acknowledging receipt on the 30th April 2015, the Complainant accepted that it was his signature but that he had no recollection of having received a copy. I prefer the evidence of the Respondent on this issue and I find that the complaint is not well founded.

CA-00039733-004 Complaint under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

Furthermore section 12 covers the decision of the Adjudication Officer as follows:

(1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employer under section 6 may include such directions as the adjudication officer considers appropriate.

The Complainant was made redundant and had over 5 years’ service but less than 10 years therefore section 4(2)(c) applies. I find that the Respondent contravened the Act.   The Complainant already received one week’s notice therefore I find that he is entitled to a further three weeks’ notice.       

CA-00039733-001:  Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the Complainant was dismissed by reason of redundancy and is entitled to a statutory redundancy sum based on the following criteria:

Date of commencement of employment:        17/02/2015

Date of termination of employment:                25/06/2020

Gross weekly Pay:                   €393.90

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant periods.

CA-00039733 – 002: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the complaint is not well founded.

CA-00039733-004: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the Respondent contravened the Minimum Notice and Terms of Employment Act, 1973 and I direct the Respondent to pay the Complainant the compensatory sum of €1181.70, representing 3 weeks salary.

Redundancy Payments Act 1967, Terms of Employment (Information) Act 1994, Minimum Notice and Terms of Employment Act 1973, lay-off.