Complainant

Respondent

Parties

Pawel  Mokwinski

Ryan's Investments Unlimited Company

Representatives

Appeared In Person

 Michael Brennan, Solicitor  

Act

Complaint Reference No.

Date of Receipt

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

CA-00039783-001

12/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039783-002

12/09/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 12 September 2020, the Complainant, a Polish Rental Returns Agent submitted a claim for a lump sum   redundancy payment and minimum notice to the WRC. At that time, the complainant named his representative as IWU. On the day of hearing, he attended alone and presented his case as a lay litigant.

The Respondent operates a large Car hire business. On November 20, 2020, the Respondent filed an outline submission which rejected the claim for redundancy and explained that the complainant had been placed on temporary lay off due to the Covid 19 pandemic. The Respondent augmented this statement by rejecting the complainants request for a redundancy payment based on the complainant’s resignation. This statement was filed once more, with minor adjustment on August 4, 2021, prior to hearing. The Respondent was represented by Michael Brennan and was supported by two witnesses at hearing.

Both parties were canvassed for their views on the application of the Supreme Court case of Zalewski v Adjudication Officer to the running of the case. Both parties confirmed that they were happy to proceed with the case.

The Complainant outlined that he had worked at the respondent business from 14 September 2017 until 25 March 2020. He worked full time and was paid €10.50 per hour.

CA-00039783-001 Claim for Redundancy

The Complainant submitted the following details on his complaint form. On 25 March 2020, the Complainant called his manager and informed him that he was compelled to self-isolate due to the Covid 19 pandemic.

He never returned to work. He stated that he was aggrieved as staff with shorter service than he, had been retained at the business. He learned from the Revenue website that his employment had ended in June 2020. He sought a lump sum redundancy payment.

The Complainant gave evidence by affirmation.

He told the hearing that on 24 March 2020, he was sick and advised to self-isolate for two weeks. A week later, on 30 March 2020, he received a form from the respondent. This confirmed that he had been placed on temporary layoff. He said that he had not understood the process.

He said that he was aggrieved as a fellow worker had been restored in the job before him and was still working there. He confirmed that his service had predated this employee by a few months at the business.

In April 2020, the Complainant told Mr A by phone that he wanted to return to work. He did not receive a response and was overtaken by his discovery on the Revenue web site that his finish date had been recorded as 25 June 2020.

He said that he felt unwanted and excluded from the information pathway. He handed in his uniform. He was not requested to sign any documents. He left the business.

During cross examination, the Company Solicitor read out the email communication from 30 March 2020 on Temporary Layoff. The Complainant did not recall the letter nor had he retained it . He did remember the form for application for the covid support payment.

He confirmed that he had told Mr A that he had secured a job as a Courier, but no further discussion followed.

He accepted that he had planned to return to college in September 2020. He received the Covid payment to July 2020. He commenced new work as a Courier June/July 2020.

The Complainant re-affirmed that he felt unwanted when not called back to work. He had not provided a return-to-work medical certificate but had covered his two weeks of sick leave with a medical certificate.

He had no recall of Mr A contacting him during June 2020 offering him an opportunity to return to work. He accepted that he had asked for Part Time work as he had seen other employees balancing this arrangement with college.

The Complainant submitted a statement of covid support payments effective from 3 April 2020 to 23 July 2020 which amounted to €5,600.

CA-00039783-002 Claim for Payment in lieu of notice

The Complainant sought payment in lieu of notice.

The Respondent operates a large car hire business which has been negatively impacted during the pandemic where 155/170 staff remain on lay off.  

On November 24,2020, the Respondent submitted a written response to the Complainants complaints. This statement was replicated on 4 August 2021.

CA-00039783-001 Claim for Redundancy

The Respondent denied that the complainant had been made redundant. they confirmed that the Complainant had been placed on Temporary Lay Off due to Covid 19 Pandemic.

The Respondent acknowledged that a technical oversight had arisen, where temporary layoff was flagged on the individual’s revenue account as a cessation. This was an administrative error and did not equate with a dismissal.  The Respondent rectified this error. The Respondent submitted that the obligation was on the complainant to seek to clarify this error, but he did not do so.

The Respondent outlined that the complainant had attended the business in June 2020, where he handed back his uniform and confirmed that he was working as a courier prior to commencing college in September 2020. The Complainant enquired if part time hours should become available in winter, he would be interested.

At all times, the Respondent was of a view that the complainant had resigned in pursuance of new work. He was not made redundant.

On the day of hearing, the Respondent outlined that notice of Temporary Lay Off had been communicated to the complainant by email in March 2020. He was guided towards applying for the covid support payment. Following my request, the Respondent submitted a copy of this email, which was shared with the Complainant.

The Respondent confirmed 

Evidence of Mr A, the General Manager, by affirmation.

Mr A outlined the circumstances and rapid business loss which led to the respondent placing the Complainant on temporary layoff in March 2020. This period coincided with the complainant’s sick leave.

By the end of June, an opportunity arose to bring some staff back to the business and on June 22, 2020, he contacted the complainant by phone to offer him a return. He did not return. Instead, he came in and handed in his uniform, and inquired regarding a potential opportunity for part time work?  A Redundancy situation had not arisen from the company’s perspective.

During cross examination, Mr A distinguished between the role held the complainant and the role held by Mr B who had returned to Desk duties.

Mr A confirmed that the complainant had been documented as having left the business.

Evidence of Mr C, Chief Financial Officer by affirmation.

Mr C outlined the workforce currently present in the business as 15, with the remaining 155 still on temporary layoff. The Respondent was maintaining these employees on temporary layoff.

The Respondent had no intention of converting the complainant’s temporary layoff to a cessation of contract. He was treated the same as the other workers.

CA-00039783-002 Payment In Lieu of Notice

The Respondent submitted that the complainant’s employment had ended in resignation when he returned his uniform and confirmed that he had found new work with a courier.

CA-00039783-001 Claim for Lump Sum Redundancy Payment

I have been requested to make a decision in relation to the instant claim for a lump sum Redundancy payment following a reported dismissal on March 25, 2020.

In reaching my decision , I have taken account of all written and oral submissions in addition to evidence adduced . I have also had regard for the post hearing documentation exchanged .

On commencement of the hearing , I canvassed the parties views on the application of the terms of the Emergency Measures In the Public Interest Act, Covid 19, 2020 . This constitutes an emergency measure which ran from 13 March 2020 to 30 September 2021 and precluded an employee claiming a Redundancy payment following temporary lay off .

AMENDMENT TO REDUNDANCY PAYMENTS ACT 1967 Operation of section 12 – emergency period 29. The Redundancy Payments Act 1967 is amended by the insertion of the following section after section 12:

 “12A. (1)Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19. (2) Before the expiration of the emergency period, the Government may, at the request of the Minister made— (a) after consultation with the Minister for Health, (b) with the consent of the Minister for Public Expenditure and Reform, and (c) having had regard to the matters referred to in subsection (3), by order specify a date that is later than the expiration date of the emergency period specified in the definition of ‘emergency period’ or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to, and including the date so specified. (3) When making an order under subsection (2), the Government shall have regard to the following: (a) the nature and potential impact of Covid-19 on individuals, society and the State; (b) the capacity of the State to respond to the risk to public health posed by the spread of Covid-19; (c) the policies and objectives of the Government to protect the health and welfare of members of the public; (d) the need to ensure the most beneficial, effective and efficient use of resources; (e) the need to mitigate the economic effects of the spread of Covid-19; (f) the need to ensure a continued attachment to the labour market for workers who have been temporarily laid off or put on short-time as a result of Covid-19; 35 PT.8 S.29 [No. 2.] Emergency Measures in the [2020.] Public Interest (Covid-19) Act 2020 (g) the need to protect the relationship between employee and employer during the emergency period; (h) the need to mitigate the increased risk of insolvencies in the event of a substantial number of redundancies occurring over a short time period resulting in permanent job losses. (4) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. (5) In this section— ‘emergency period’ means the period beginning on 13 March 2020 and ending on 31 May 2020.

‘Covid-19’ means a disease caused by infection with the virus SARSCoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) or any variant of the disease so specified as an infectious disease in those Regulations.”

It is clear to me from the application of the amended Section 12 of the Redundancy Payments Act, 1967 that the complainant is precluded from seeking a redundancy payment from temporary layoff status.

This stands in contrast to the circumstances of the Labour Court case of Drumcondra Child Care Ltd and Szumera RPD 1814 from 2018 where a Part Time Cleaner had claimed redundancy following lay off, following her written termination of employment. the claim was not defeated by counter notice from the employer as provided for under section 13 of the Redundancy Payments Act, 1967 and the Court awarded a redundancy lump sum.

This scenario or potential to claim redundancy from Lay off/ short time has been temporarily placed outside the reach of an employee until October 1, 2021.

However, the Complainant has made the case that he considered himself dismissed once he saw the record of the cessation of his employment on the Revenue web site in June 2020. He did not exhibit this record at hearing. The Complainant did not have a contract of employment.

Section 7(1) provides a framework for payment of redundancy providing a dismissal occurs on foot of 104 weeks service.

Section 7(2) clarifies Section 7(1) by

(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 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.]

 Redundancy is based on Impersonality and change.

Section 9 of the Act provides for Dismissal

 Dismissal by employer

(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if–

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or]

(c) the employee terminates the contract under which he is employed by the employer [ …] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

For a situation of Redundancy to apply, an employee must be dismissed.

I have a certain dissatisfaction at the clear lack of retained records in this case by either party. I have reviewed the March 30 communique which activated the temporary layoff. However, I would have expected some record of engagement with employees during this period, if only to reaffirm the circumstances of temporary layoff. I note that all outstanding annual leave was paid to the complainant on commencement of temporary layoff.

I would have preferred to have seen an invitation to return committed to writing. I would also have preferred to see some documentation on the circumstances of the conclusion of employment which is now disputed. A best practice model supports good contemporaneous record keeping and while I appreciate that the business had severely contracted during this period, I would have liked to have reviewed inter party and records of employee cessation. Instead, I have had to rely wholly on the evidence adduced at hearing.

The Complainant told me that he was highly aggrieved at being overlooked for a return to work. I could see that this was foremost in his mind. He added that he had been shocked to view a mention of cessation of employment on revenue web site. He did not seek to clarify or resolve these issues with the respondent. Instead, he continued in receipt of the covid support payment arising from his association with the respondent business until he commenced new work as a Courier.

I accept that he had no recall of being offered a return to work in June 2020. However, I found Mr A’s evidence compelling on the invitation   to return.

During this time, he returned his uniform, linking him to the Respondent business and requested access to part time work at some time in the future. Based on those facts, I cannot establish that the Complainant was dismissed.

I appreciate that all interactions outside of March 30 email were overly casual and the complainant did not have the benefit of a contract of employment.

I accept the Respondent evidence that the Company had placed their entire staff on temporary layoff in March 2020 and while a small number of staff had returned, the lions share had remained on temporary lay off awaiting an improvement in trading circumstances or a firm determination of their future.

I find that the complainant triggered his own resignation when he commenced work with the Courier business and returned his uniform in June / July 2020.

There was no dismissal and the circumstances do not amount to a valid redundancy.

I find the claim is not well founded.

CA-00039783-002 Payment in lieu of Notice

This claim is lodged under Section 6 of the Payment of Wages Act, 1991 and is linked to a claim for payment in lieu of notice.

I have considered this claim and refer to the provisions of Section 4 of the Minimum Notice and Terms of Employment, Act, 1973

4. Minimum period of notice

(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,

Employment is generally required to be terminated in accordance with express or implied terms of the contract of employment. I have not established the presence of a contract of employment in this case.

I have already found that the Respondent did not give notice of dismissal in this case. The circumstances of the case reflect that the complainant resigned when he found new work at the Courier company. He continued to receive the PUP payment until the last week of July 2020 as the Respondent did not have work available for him. The Complainant had not been re-instated for termination purposes, therefore the question of notice owed does not arise.

I find the claim for payment in lieu of notice to be not well founded.

CA-00039783-001 Claim for Redundancy Lump Sum

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 have found that the complainant was not dismissed, and a valid redundancy does not arise.

The claim is not well founded.

CA-00039783-002 Payment in Lieu of Notice

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.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with section 5 of that Act.

The claim is not well founded.

Redundancy, Payment In Lieu of Notice.