Complainant

Respondent

Parties

John  O'Brien

Kevin Hogan Contracting LTD

Representatives

Paul Gavan, Senator

 Did not attend

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00048087-001

11/01/2022

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

CA-00048087-002

11/01/2022

The Complainant commenced his employment with the Respondent on 3rd May 2016.  He was on lay-off from 11th January 2021.  He submitted his complaints to the Director General of the WRC on 11th January 2022.

The Complainant submits as follows.

The Complainant is an experienced construction general operative, with 20 years of experience. He entered employment with the Respondent on 3rd May 2016. He received an hourly rate of pay of €18.47. He worked diligently delivering a very high standard of work. He had an excellent attendance record, and perfect records in terms of disciplinary procedure.

The Complainant was frequently frustrated with the Respondent regarding basic issues like the issuing of payslips, and the consistent refusal to establish a pension. Throughout his employment the Complainant received a handful of payslips from his employer. A pension was never set up.

Upon commencement of the Sectoral Employment Order the Complainant asked the Respondent to enrol him in the construction pension scheme. However, the Respondent refused to do so despite repeated requests.

The Complainant is seeking recompense in line with his entitlements under the SEO, i.e., €44.39 per week from 20th October 2017 to 20th September 2019 (101 weeks) and €45.59 per week from 1st October 2019 until lay off on 11th January 2021(67 weeks). The total calculation amounts to €7,537.92.

The Complainant confirmed at the adjudication hearing that he was laid off from 11th January 2021.

There was no attendance by, or on behalf of the Respondent.

The matter for me to determine is whether the Respondent breached section 23 of the Industrial Relations (Amendment) Act 2015 by failing to allow the Complainant access to a pension scheme, as provided for under the terms of the Construction Sector Sectoral Employment Order.

The Complainant commenced his employment with the Respondent on 3rd March 2016. He was laid off and in receipt of the Covid-19 Pandemic Unemployment Payment from the Department of Employment Affairs and Social Protection from 11th January 2021.

I note that pension, sick pay and Death in Service contributions are not paid to the CWPS from Covid-19 related lay-off payments.

Section 41 of the Workplace Relations Act 2015 provides that:

“(6) 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.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of 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.”

The complaint was submitted to the WRC on 11th January 2022. By application of the time limits provided for in section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. In the within case, the cognisable period is, therefore, from 12th July 2021 to 11th January 2022. The Complainant was on lay-off during that period. Therefore, I am satisfied that the alleged contravention of the SEO falls outside the cognisable period of this complaint. The alleged contravention of the SEO also falls outside the extended period as provided for in section 41(8) of the Act.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in section 41 of the Workplace Relations Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

The complaint has not been referred to the Director General of the WRC within the time limits provided for in section 41 of the Workplace Relations Act. Accordingly, I do not have jurisdiction to inquire into the complaint. I declare this complaint to be not well founded.

The Complainant submits as follows.

The Complainant was laid off on 11th January 2021. He spent several months contacting the Respondent to see when he could return to work. The Complainant became increasingly frustrated as work colleagues who were self-employed were called back to work, but he remained on temporary layoff.

The Complainant submits that after initial communication by phone and text, the Respondent them refused to return calls or texts for several months. The Complainant, completely frustrated by this turn of events, felt that he had no choice but to apply for redundancy and did so by using the RP9 form on 22nd October 2021.

Having received no acknowledgement at all from the Respondent, the Complainant completed another RP9 form and this time posted it by registered post to the Respondent. The Complainant still did not hear from the Respondent who continues to trade as a working contractor and is currently engaged in building work in Limerick City.

The Complainant, therefore, had no choice but to pursue his redundancy claim to the WRC.

There was no attendance by, or on behalf of the Respondent.

The relevant law

7. General right to redundancy payment

(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.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

12. Right to redundancy payment by reason of lay-off or short-time

(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Based on the uncontested evidence of the Complainant, I find that he commenced his employment with the Respondent on 3rd May 2016. He was put on temporary lay-off on 11th January 2021.

The Complainant notified the Respondent of his intention to claim a redundancy payment in respect of the lay-off on 22nd October 2021 by using the RP9 form. The Respondent did not contest the liability for the redundancy payment claimed by the Complainant and the Complainant received no counter notice. To avoid any confusion, the Complainant sent the RP9 to the Respondent by registered post on 29th November 2021. It was not returned to the Complainant. He received no communication from the Respondent and referred his complaint to the Director General of the WRC on 11th January 2022.

Based on the uncontested evidence of the Complainant, I find that the Complainant has met the conditions pursuant to section 12 of the Act and has notified the Respondent of his intention to claim redundancy payment as set out at section 12(2) and subject to 1 weeks’ notice to the employer. 

Periods of lay-off within three years of an employment ending are non-reckonable. The Redundancy Payments (Amendment) Act 2022 addresses this issue, providing for a special payment to cover the loss with respect to a redundancy lump sum because of pandemic-related lay-off. A decision regarding the Complainant’s entitlement to the special payment is outside the scope of this adjudication and one to be addressed via the means prescribed by the Redundancy Payments (Amendment) Act 2022.

I am satisfied that the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Act 1967.

I allow the Complainant’s appeal. I declare that the Complainant is entitled to a statutory redundancy lump sum payment calculated in accordance with the following criteria:

Date of commencement of employment:  3rd May 2016 Date of commencement of lay-off: 11th January 2021 The RP9 Form was served on the employer on 22nd October 2021 Termination date allowing for 1 week’s notice: 28th October 2021 Gross weekly wage: €720.35 (subject to the wage ceiling of €600 per week)

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

Redundancy – pension – Sectoral Employment Order