ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034952
Parties:
| Complainant | Respondent |
Parties | Mindaugas Jakstonis | Birds Eye Ireland Limited |
Representatives | Vadim Karpenko First National Consulting and Legal Service | Michael McGrath IBEC |
Complaint(s):
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-00046001-001 | 07/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00046001-002 | 07/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046001-003 | 07/09/2021 |
Date of Adjudication Hearing: 13/07/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission.
The Employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where reasonable cause has given rise to the failure to apply and the Adjudication Officer so finds (double check).
Background:
An issue arose in the workplace in January 2021 when the Complainant was no longer satisfied to be tested once a month for Covid. The Employer was not happy to allow the Complainant into the workplace if he was not willing to comply with the emergency health measures then in place. The Respondent denies this was a lay off. An Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal). Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off. Ideally, a Contract of Employment should reference the entitlement to put an employee on lay off or short time. If an employee has been on short time (less than half wages), or been laid off for four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, the employee can give Notice in writing of the intention to claim redundancy on the expiry of that thirteen-week period (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice. The Employer can give counter notice (within seven days) indicating that there will be a commencement of full-time work within the next four weeks. A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days he or she is laid off. Section12 A of the Redundancy Payments Acts 1967 was inserted by the Emergency Measures in the Public Interest (Covid-19) Act 2020. This temporarily suspended Section 12 of the 1967 Act 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 government policy in respect of Covid 19. Such an employee is not entitled to give notice of his/her intention to claim redundancy during the redundancy period. This applied up from March 2020 to September 2021.
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Summary of Complainant’s Case:
The Complainant had been working with the Respondent since 2005. At the start of the pandemic the Complainant submitted himself for regular covid testing. He subsequently opted not to be tested. Thereafter he was refused access to the workplace. The Complainant subsequently sought a Statutory Redundancy payment in circumstances where he says he had been laid off off for some period and more than is provided for under the Act. The Complainant was fully represented at the hearing, and I had an opportunity of reading the submission as provided. The Complainant’s representative made further argument. |
Summary of Respondent’s Case:
At all times the Employer was clear that the Complainant had not been dismissed and nor was he on lay off in circumstances where there was plenty of work for the Complainant if he could overcome his difficulties with submitting for testing. The Respondent was represented, and I as provided with a submission in advance of the hearing. |
Findings and Conclusions:
I have carefully considered the evidence adduced and in particular I have considered the two sets of written submissions which were opened to me. At the outset I can confirm that the Employer was perfectly reasonable in requesting that a staff of 600 people should be regularly tested for Covid 19. This was provided for in the workplace. It is worth noting that the Complainant submitted for this test for up to nine months before stating he was no longer prepared to do so. There was nothing underhand or unusual in this requirement. This unsubstantiated refusal to participate in the testing is what triggered the Complainant’s departure from the workplace. The Employer confirmed in March 2021 by letter that it was allowing the Complainant to stay away from the workplace on the basis of unpaid leave. The Complainant did not challenge this description and did not at any time raise a Grievance on the merits of enforced Covid testing or otherwise. Nor did he seek to challenge the nature of his exclusion from the workplace. Other correspondence with the workplace has constantly recognised that he was out on unpaid leave. In early September 2021, the Complainant sought to trigger Section 12 of the Redundancy Payments Acts – claiming Statutory Redundancy in circumstances where he had been out of work owing to workplace Lay off. I accept that the Complainant was not then, nor was he ever, on a recognised workplace lay off. This is evidenced by the fact that the Complainant was not on Jobseekers or Covid payments for this period. I note that even had he been on lay off, he was pre-emptive in seeking Statutory Redundancy where the Emergency Measures then in place did not expire until the end of September 2021. I can confirm that it is my understanding that the Complainant continues to be an Employee of the Respondent Employer. His seventeen years of Service is intact. Indeed, the Complainant has now returned to the Respondent workplace as all Covid related workplace restrictions and interventions have been lifted. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00046001-001 – The Complainant was not entitled to a Redundancy payment . Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00046001-002 - This complaint was withdrawn at the hearing of the matter. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00046001-003 – The Complainant was not entitled to Notice in circumstances where his employment was not terminated.
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Dated: 19th July 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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