Complainant

Respondent

Parties

Elaine  O'connor

Kentz Management, A Member of The Snc Lavalin Group

Representatives

  Self

Ciara McMahon Eversheds Sutherland

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-00036242-001

19/05/2020

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

CA-00036242-002

19/05/2020

This case was concerned with a complaint that an ex-gratia payment made in 2017 and then said to have been made again to one employee in April 2018 was not paid to the Complainant. The complaint was submitted under the Redundancy Payments Act 1967 although there was no dispute about the payment of a statutory redundancy lumpsum. This led to discussion regarding the complaint with the parties at the hearing which is addressed in the findings section of this decision.

The Complainant stated that she was part of a collective redundancy in November 2019. At the hearing she explained that there were six employees involved in the collective redundancy, two of whom received an additional lumpsum payment as they were members of a trade union. In response to her claim for an ex-gratia payment she was informed that a decision was made in 2017 that no further ex gratia payments would apply, and this decision was applied rigidly after that time. The basis of the complaint is that from her own direct knowledge in HR at the time, a colleague received a lumpsum ex gratia payment in April 2018 after it was said that there was a new policy not to pay such lumpsums to Irish employees taken by the Employer in June 2017. She could not see why she was treated any differently as she was employed off the same template as that former employee. She gave considerable detail of the communications with that employee’s solicitor and the HR Department regarding the lumpsum. She contended that the lumpsum paid to that employee was not part of any other settlement and she was directly involved and aware of the communications with that former employee and their solicitor at the time. Another ex-gratia payment was paid to two other employees in 2020.

The Respondent outlined the background to redundancies in the Company. The Complainant received various payments including statutory redundancy and therefore could have no complaint under that legislation. There was disagreement regarding the basis on which the members of a trade union received an ex-gratia payment in 2020. This was explained as being due to the type of those redundancies and the area in which they occurred at that time following a TUPE. It was contended that the payment to the other employee in 2018 was part of an overall settlement and not solely related to redundancy.

An appeal mechanism

The Complainant had lodged an appeal, and this was heard but not upheld based on the comparison that she had drawn with the other employee who received an ex-gratia payment in 2018. Essentially the Respondent’s position was that the WRC have no jurisdiction in this matter as statutory redundancy was paid and the complaint was submitted under the Redundancy Payments Act.

As stated, the Complainant does not dispute that she received her statutory redundancy lumpsum and confirmed that her issue is about non-payment of an ex-gratia payment. It was put to the parties that this issue was clearly flagged in the non-statutory WRC form where it was stated:

“My complaint is that I did not receive equal treatment. It was stated in response to a request for payment of ex gratia during our collective consultation meetings: “As you are aware in 2017 a decision was made that no further ex gratia payments would be made to employees based in SMCL Ireland.”

Explaining to the parties that allowing for the clear flagging of the issue in the notification the question arose as to whether there was a reference to any ex-gratia payment in the Complainant’s contract of employment which might allow that it would be considered as a payment which was “properly payable” under the Payment of Wages Act 1991. The Complainant confirmed that there was no such clause in her contract. On this basis it was explained that even if latitude was allowed based on the contents of the form, then there could be no valid complaint under the Payment of Wages Act 1991. The only alternative for consideration would be the Industrial Relations Act 1969 which under section 39 allowed for consideration of a dispute. However, to proceed with a dispute under the Industrial Relations Act would require the agreement of the employer at the hearing or alternatively that three weeks’ notice would issue to the employer which would allow them to object if they wished or to agree and in the event of an objection the disputed matter could be referred to the Labour Court under section 20(1). It was then put to the Complainant that there were other former employees who could be affected by any concession of her claim, and this was not disputed. As a matter of fact, she confirmed that at least one other former employee has made the same claim. On this basis the parties were advised that even if the Employer were agreeable to have the matter considered under the Industrial Relations Act that an adjudication officer would not have jurisdiction to deal with the dispute as it has implications for other employees and fell into the category generally known as a group claim or one affecting potentially a group of workers. The Employer representative said there would be no benefit in issuing a recommendation in such circumstances and I share that view.

In summary, the Complainant does not have a valid complaint under the Redundancy Payments Act 1967.

Allowing for the fact that the Complainant flagged the nature of the issue in her complaint form, that is to say a claim for an ex -gratia payment, the finding is that there is no jurisdiction or other basis available to an adjudication officer under employment rights or industrial relations legislation which would allow for genuine consideration of the claim in all the circumstances.

CA-00036242

The Complainant received her statutory redundancy pay and as such, her appeal under the Redundancy Payments Act 1969 is disallowed.

Redundancy Ex Gratia Payment