ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00028848
Parties:
| Complainant | Respondent |
Parties | Gary O'Flaherty | Heneghan Premier Services Ltd |
Representatives | SIPTU |
|
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967 | CA-00037874-001 | 19/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00037874-002 | 19/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00037874-003 | 19/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00037874-004 | 19/06/2020 |
Date of Adjudication Hearing: 04/11/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 19th June 2020, the complainant referred complaints to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 4th November 2021. The hearing was held remotely.
At the time the adjudication was scheduled to commence, it was apparent that there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the time and date of the adjudication and that it had been provided with the log-in details of the hearing. I waited some time to accommodate a late arrival. There was no appearance by the respondent, so I proceeded with the hearing in its absence.
The complainant was in attendance and was represented by Deirdre Canty, SIPTU.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 39 of the Redundancy Payments Acts 1967 - 2014following 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 worked for the respondent from the 1st October 2017 to the 5th June 2020. He was dismissed on grounds of redundancy. He was paid €448 per week. |
Summary of Complainant’s Case:
The complainant outlined that his employment started on the 1st October 2017. He worked a 40-hour week and was paid €11.20 per hour. His gross weekly wage was €448. The respondent served a notice of redundancy, dismissing the complainant on the 5th June 2020. The complainant outlined that the staff memo was clear that he was being permanently laid off. He was laid off at the end of March 2020. He received the Pandemic Unemployment Payment in this time and the respondent never stated why it had not availed of the Temporary Wage Subsidy Scheme in respect of him. The complainant outlined that there was no contact from the respondent between March 2020 and June 2020, until it informed him that his employment was to end on the 5th June 2020. The complainant outlined that he commenced new employment on the 23rd June 2020. The complainant outlined that he was on lay off between the 27th March to 5th June 2020. He was never provided with a statement of the terms of his employment, and this had serious consequences for him. He outlined that he was due notice pay and was also owed outstanding annual leave for two days. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication. The complainant submitted three items of correspondence sent to him and his colleagues by the respondent. The letter of the 5th June 2020 stated that the respondent was not taking anybody off temporary lay-off and that the complainant’s position ‘has been permanently laid off’. The later respondent correspondence of the 24th June 2020 referred to a 14-day period of consultation for redundancy commencing on that date. It referred to the respondent not being able to pay redundancy lump sum payments. The respondent letter of the 1st July 2020 refers to the complainant commencing new employment so that he had terminated his employment prior to the redundancy consultation process and, therefore, not entitled to a redundancy lump sum payment. |
Findings and Conclusions:
CA-00037874-001 This is a complaint pursuant to the Redundancy Payments Act. The complainant outlined that his employment was terminated on the 5th June 2020, in line with the respondent letter of the 5th June 2020 which refers to his employment having already ended. This letter referred to the complainant now being permanently laid off. In later correspondence, the respondent referred to the commencement of a redundancy process. I find as fact that the complainant’s employment was terminated on the 5th June 2020 in accordance with the respondent’s letter of that date. As noted by the complainant, this letter refers to the complainant already being permanently laid off. Lay-off is, by definition, temporary (see section 11 of the Redundancy Payments Act) so permanent lay-off is a dismissal. The respondent referred to the impact of the pandemic on its business. It follows that a redundancy situation arose in this case. The respondent’s later correspondence refers to the commencement of a redundancy process. I note the complainant’s message of the 8th June 2020: ‘Am I being made redundant?’ I note that the letter of the 1st July 2020 refers to the complainant becoming disentitled to redundancy because he started new employment on the 23rd June 2020. First, I have found as fact that the complainant’s employment had already ended on the 5th June 2020 (in line with the respondent’s letter of that date). Second, an employee who obtains employment with another employer while on lay-off cannot be said to have resigned from their existing employment, unless, of course, they explicitly resign. Employees on lay-off are free to secure work elsewhere while preserving their subsisting employment. Even if the respondent letter of the 5th June 2020 had not been a definitive letter of dismissal, the complainant commencing other employment would not disentitle him to the redundancy lump sum, unless he had explicitly resigned. It follows that the complainant was made redundant and is entitled to a redundancy lump sum according to the following criteria. Employment start date: 1st October 2017 Employment end date: 5th June 2020 Gross weekly wage: €448 Period of non-reckonable lay-off: 27th March to the 5th June 2020 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. As discussed at the adjudication, 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 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. CA-00037874-002 This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserted that he was not provided with a statement of the terms of his employment. The respondent has not denied this assertion. It is the longstanding obligation of an employer to give to the employee a statement of the main terms of their employment. This statement should be provided within two months of the employment commencing and this has been a legal requirement since May 1994. In 2019, employers were also required to provide a 5-day statement. Not only are these obligations of long standing, they are underpinned by EU Directives (91/533/EC and now, 2019/1152). The purpose is that employees know the basic information about their employment, in particular to assist in the predictability in the employment relationship. Where no statement is provided, redress should be proportionate, dissuasive and effective and up to four weeks of pay. Not providing a statement is a subsisting breach throughout the employee’s employment. In this case, I award redress of €1,700 as no statement was ever supplied to the complainant. CA-00037874-003 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. I have found that the complainant was dismissed on the 5th June 2020. This was an immediate dismissal, and the complainant was not given paid notice. It follows that the complainant is entitled to two weeks of notice pay in accordance with the Act. I award redress of €896. CA-00037874-004 This is a complaint pursuant to the Organisation of Working Time Act in respect of two days of annual leave owed. In accordance with the complainant’s evidence, I find that he is entitled to two days of annual leave. I award redress of €200, which includes an acknowledgement of the breach of statutory duty. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00037874-001 I decide that the complainant is entitled to a redundancy lump sum payment in accordance with the Redundancy Payments Act on the following criteria: Employment start date: 1st October 2017 Employment end date: 5th June 2020 Gross weekly wage: €448 Period of non-reckonable lay-off: 27th March to the 5th June 2020 This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period. CA-00037874-002 I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,700. CA-00037874-003 I decide that there was a contravention of the Minimum Notice & Terms of Employment Act and I direct that the respondent pay to the complainant compensation of €896. CA-00037874-004 I decide that the complainant was due two days of annual leave, and the respondent shall pay to the complainant €200 for this contravention of the Organisation of Working Time Act. |
Dated: 8th June 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Redundancy Payments Act / lay-off / special payment Redundancy Payments (Amendment) Act Terms of Employment / notice pay / annual leave |