ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031341
Parties:
| Complainant | Respondent |
Parties | Danguole Mamedoviene | Canpak Limited |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Self represented | David O'Riordan, Solicitor |
Complaints:
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-00039700-001 | 09/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039700-002 | 09/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039700-003 | 09/09/2020 |
Date of Adjudication Hearing: 07/07/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act 1967 and Section 27 of the Organisation of Working Time Act 1997 and Section 8 of the Unfair Dismissals Act 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant seeks redundancy payment, compensation payment for public holidays and redress for unfair dismissal. The complaints were received by the Workplace Relations Commission on 9 September 2020. |
Summary of Complainant’s Case:
The Complainant was employed as a General Operative with the Respondent from 3 November 2005. She went on sick leave on 23 October 2017 and never returned to work. She advised the Respondent that she wished to return to work when she was able to do so. However, the Respondent advised her in September 2018 that if she did not return to work by 19 October 2018 then he would have to issue a P45. The Complainant replied that she did wish to return to work. However, she was not in a position to do so and she still remains unfit for work. The Complainant argues that she is still employed by the Respondent as she never received any reply to her request to remain on in the employment. The Complainant explained that the reason for the delay in submitting her complaints to the WRC was that she was trying to have her illness benefit extended and that the Citizens Advice Bureau advised her to make the complaints to WRC. |
Summary of Respondent’s Case:
The Respondent argued that these complaints are manifestly out of time per the legislation. In addition, the Respondent advised the Complainant that should she not be in a position to return to work by 19 October 2018 then he would have to issue a P45. Having received a reply from the Complainant on 5 October 2018 indicating that the Complainant was not in a position to return, the Respondent had no option but to issue the Complainant with a P45. The argument by the Complainant that she is still employed is implausible. The Complainant’s position has been filled. |
Findings and Conclusions:
CA-00039700-001 Redundancy Payments Act 1967 Section 24 of the Redundancy Payments Act 1967 (as amended) provides that an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of the dismissal or the date of the termination of employment, a question as to the right of the employee to the payment, or as to the amount of the payment has been referred to the Director General of the Workplace Relations Commission under Section 39. Section 24 (2A) provides for an extension of this time period to 104 weeks if the Adjudication Officer is satisfied that the employee would have been entitled to the lump sum and that the failure to make the claim was due to reasonable cause. This claim for redundancy payment was received by the WRC on 9 September 2020. I note that the Complainant’s employment was terminated by the Respondent with effect from 19 October 2018. |
The Complainant’s employment was terminated in circumstances of her incapacity to perform the job she was employed to carry out. I note the evidence of the Respondent that the job the Complainant occupied was filled. Therefore the issue of time limits is a moot point. However, I find that having sought an extension for her illness benefit and consulted with Citizens Advice and almost two years having elapsed before the Complainant submitted her claim for redundancy payment does not constitute reasonable cause for an extension of time. I find that as provided for in Section 24 (2A) the Complainant would not have been entitled to a lump sum and the failure to present the claim within 52 weeks was not due to reasonable cause. I find the claim is not well founded. CA-00039700-002 Organisation of Working Time Act 1997 Section 41 (6) of the Workplace Relations Act 2016 provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41 (8) provides: “an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. This complaint was received by the WRC on 9 September 2020. The maximum time period as provided in the legislation runs from 9 September 2019. I note the Complainant’s employment was terminated on 19 October 2018, as borne out by the evidence and the issue of the P45. I find the complaint is out of time and not well founded. CA-00039700-003 Unfair Dismissals Act 1977 Section 41 (6) of the Workplace Relations Act 2016 provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41 (8) provides: “an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. This complaint was received by the WRC on 9 September 2020. The maximum time period as provided in the legislation runs from 10 September 2019. I note the Complainant’s employment was terminated on 19 October 2018, as borne out by the evidence and the issue of the P45. I find the complaint is out of time and not well founded.
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Decision:
CA-00039700-001 Redundancy Payments Act 1967 I have decided the claim is not well founded. CA-00039700-002 Organisation of Working Time Act 1997 I have decided the complaint is out of time and not well founded. CA-00039700-003 Unfair Dismissals Act 1977 I find the complaint is out of time and not well founded.
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Dated: 8th September 2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Redundancy, Unfair Dismissal, out of time. |