Complainant

Respondent

Parties

Sarah  Sheehan

Redundancy and Insolvency Payments Section

Representatives

 Robert McNamara, Mandate Trade Union

 Self-represented

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-00041209-001

24/11/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Acts, 1967 and has submitted that she did not receive any redundancy payment.  The complainant has submitted that she was dissatisfied with a decision of a Deciding Officer of the Redundancy & Insolvency Payments Section of the Department of Social Protection (the Respondent) to disallow her claim for the payment of Statutory Redundancy in accordance with the provisions of the Redundancy Payments Act 1967 as amended.

This hearing was conducted by way of remote hearing, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designate the Workplace Relations Commission as a body empowered to hold remote hearings. 

The parties were advised of the implications of Zalewski V Adjudication Officer (2021) IESC 24.  and both parties advised the hearing that there was no dispute as to the facts of the case.

The complainant submits that she worked as a Sales Advisor, contracted to work 12 hours per week and commenced employment in Debenhams, on 26' April 2018.   Due to the unfolding situation with Covid-19 the store was temporarily closed on 23rd March 2020 and the complainant was paid normal contracted hours up to 31st March 2020.

On 9 April 2020, the company went into Administration and subsequently joint Liquidators were appointed on 16th April 2020.   The complainant was placed on lay-off from 1st April 2020 to 25th May 2020 and was in receipt of the Pandemic Unemployment Payment (PUP) during that period.

The complainant's employment ended on 20th May 2020.  The complainant's employment ran from 26th April 2018 to 20th May 2020, however on 19th October 2020 a deciding Officer from the Department of Social Protection issued a disallowance letter to the complainant in respect of a claim submitted for redundancy.

The complainant submits that the Deciding Officer contends that the complainant has less than 104 weeks continuous employment as provided for in Section 7 of the Redundancy Payments Act 1967.

The complainant disputes this and submits that  Section 11 of the act particularises that; "where an employee's employment ceases by reason of his employer being unable to provide work for which the employee was employed to do and a) it is reasonable in the circumstances for the employer to believe that the cessation of employment will not be permanent; and b) the employer gives notice to that effect to the employee prior to the cessation, the cessation will be regarded as lay- off." authorised by the employer,... continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given."

The complainant in support of her case cites the case of  Murphy J. in the High Court, Irish Shipping Ltd v Adams in which the High Court considered the meaning of "continuous employment" and in those circumstances concluded that periods of lay off did not affect continuity.

The respondent submits that in order to qualify for a statutory redundancy payment, an employee must be in employment which is insurable under the Social Welfare Acts for all social welfare benefits and have a minimum of 104 weeks of employment with that employer.    Lay-off is described in Section 11 of the Redundancy Payments Act.     

The respondent submits that any period during which an employee was laid off is not treated as ‘reckonable service’.

Joint liquidators were appointed to Debenhams Retail (Ire) Ltd. on 16th April 2020.  The Redundancy and Insolvency section received a Redundancy Payments Scheme claim from the liquidator on behalf of the complainant on the 17th of September 2020.   On the 22nd of September 2020, the complainant’s email confirmation was received indicating that the information on the form was correct.

 The respondent submits that the claim was assigned to a deciding officer for processing on 24th of September 2020.  In processing a claim for the scheme, the information declared on the form is checked against the records held by the Department to ensure accuracy.

The respondent submits that upon review of the complainant’s Redundancy Payments Scheme claim the deciding officer confirmed that the gross weekly wage, start date and end date entered on the form were correct.  The RP50 form also listed a break in service for a period in which the complainant was laid off and in receipt of the Pandemic Unemployment Payment (PUP), that being from the 01/04/2020 to the 20/05/2020. The claim of PUP was verified against this Departments records.

 The complainant’s employment with Debenhams Retail Irl Limited was from the 26th of April 2018 to the 20th of May 2020.   However, the respondent asserts that the period of lay-off is excluded from the calculation of 104 weeks employment and consequently submits that the complainant has only attained 100 weeks of service from 26th April 2018 to the 20th of May 2020, for which the relevant PRSI contributions have been paid, which the respondent states is less than the requisite period of 104 weeks described in Section 7 of the Redundancy Payments Act. 

Based on the complainants alleged failure to attain the 104 weeks the deciding officer issued a disallowance letter to the complainant.

Section 7 of Redundancy Payments Act 1967 provides that;

"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....

Section 1, subsection (5) goes on to define "requisite period" as; "5) In this section "requisite period" means a period of [104] weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years"

Schedule 3 goes on to provide inter alia the definition of "continuous service" as being.

Where an employee s period of service is interrupted by any one of the following: (a) any period by reason of - (!) sickness (ii) lay- off (iii) holidays (iv) service by the employee in the Reserve Defence Forces of the State (v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but

Section 11 of the act particularises that;

"where an employee's employment ceases by reason of his employer being unable to provide work for which the employee was employed to do and (a) it is reasonable in the circumstances for the employer to believe that the cessation of employment will not be permanent; and (b) the employer gives notice to that effect to the employee prior to the cessation, the cessation will be regarded as lay- off." authorised by the employer,... continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given."

I note that the Respondent in this case is tasked with managing the Social Insurance Fund (covering both the Insolvency and Redundancy Payments Schemes), from which employees’ statutory entitlements are discharged upon the requisite application and criteria being met when they cannot otherwise be recovered from former employers.  The Respondent is further responsible for recouping such payments.

The respondent submits that the summary of contributions for the complainant shows that 100 contributions were paid by the complainant during her employment and submits that this is less than the 104 weeks continuous employment referred to in Section 7 of the Act.  The respondent concludes that it therefore does not appear that the complainant was ‘employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2004’   for the requisite period.

Schedule 3 of the Act defines ‘Continuous Employment’. It outlines a number of interruptions to the period of service which preserves the continuity of service.  

 Schedule 3 states ‘continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given’.

However, the respondent submits that Schedule 3 does not state that the period of the interruption of service can be included as part of the calculation for the ‘period of 104 weeks continuous employment’.

The respondent accepts that the breaks in service due to lay-off did not disrupt the continuity of employment, but at the same time asserts that the complainant had not attained the requisite period of 104 weeks employment referred to in section 7(5) of the Redundancy Payments Act 1967, as amended. 

In arriving at its conclusion, the respondent refers to the concept of ‘reckonable service’ and  states that the period of lay-off is not included in the calculation of the relevant period or in the period of ‘reckonable service’ as outlined in Schedule 3, Paragraph 7 –12 of the Act as follows:

7. For the purposes of this Schedule, a week falling within a period of continuous employment and during which (or during any part of which) the employee concerned either was actually at work, or was absent therefrom by reason of sickness, holidays or any other arrangement with his employer shall, subject to paragraph 8, be allowable as reckonable service.

8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service— (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993, (b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a), (c) absence by reason of lay-off by the employer.

The respondent is making the argument that the lay off period is not computable for the period of ‘reckonable service’, however the respondent in advancing the within arguments appears to be conflating ‘reckonable service’ and ‘continuity of service’ however, reckonable service should only be a factor in calculating the amount of any award.  .   

In considering this matter I am mindful of Section 39(15) of the Redundancy Payments Act 1967 which provides an appeals mechanism for employees (and employers) against a decision of a Deciding Officer of the Respondent or their former employer relating to redundancy entitlements (when in issue or unpaid) at first instance to the WRC, this appeal mechanism is subject to the proviso that “…the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts.”

I am also mindful that I am not being asked to decide whether or not the complainant is or was at the material time in employment ‘which is or was insurable for all benefits under the Social Welfare Acts’ but rather I must decide whether or not the period of Lay off during which the complainant was in receipt of the PUP payment should be excluded from the calculation of the requisite period of 104 weeks.

In considering the evidence adduced in conjunction with the provisions of Section 7 it is clear that the period of lay off during the PUP did not break the complainant’s continuity of service.  

Section 7 requires 104 weeks continuous employment within the meaning of Schedule 3.    I note that Section 7 itself does not contain any reference to ‘reckonable service’ and so it is only continuous service which is referred to and it is clear from the legislation that the period of lay off does not affect or break this continuity.   Therefore, what we are concerned with is whether or not the complainant has continuous service of 104 weeks and the complainant in this case by virtue of her employment start date and end date and including the period of lay off while on the PUP has attained the 104 weeks continuous service.  

The concept of reckonable service and the calculation of the complainant’s redundancy entitlement having regard to the period of lay off is a matter for the respondent to calculate given that the complainant has attained the required 104 weeks continuous service.

In conclusion, having given a great deal of consideration to the evidence presented both written and oral I am satisfied from the totality of the evidence adduced that the complainant in this case has established an entitlement to a redundancy payment and her appeal against the decision of the Deciding Officer is upheld.

Based on the findings outlined above, it is my decision that the Complainant’s case is well founded.  In these circumstances, it is my decision that the Complainants appeal against the decision of the Deciding Officer is upheld, and she should be awarded her statutory redundancy entitlement by the respondent.