Complainant

Respondent

Parties

Liam Walsh

AB Wood Products Ltd, in Liquidation

Representatives

Not represented

Not represented

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-00038944-001

29/07/2020

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

CA-00041501-001

Withdrawn

10/12/2020

Mr Walsh said that he commenced employment with AB Wood Products Limited on May 5th 2014.  He was a machine operator and programmer at the company’s factory in Ballylanders, County Limerick.  On July 7th 2018, a fire at his place of work resulted in him being laid off.  He claimed unemployment benefit from that date, although he did some unpaid work for his employer when he travelled to Latvia on four occasions and once to Italy, to advise about quality control of the wood produced there.  From October to December 2018, he worked for a company that produced kitchen doors for his employer.  For two months in 2019, again on an unpaid basis, he delivered products around Ireland.

Although Mr Walsh expected to return to work when the facility in Ballylanders re-opened, AB Wood Products Limited was placed into liquidation on February 18th 2020, when the company ceased trading and all the employees were made redundant.  Mr Walsh claims that he is entitled to a redundancy payment.

At the hearing, Mr Walsh said that he worked for the Galtee Wood Group for 20 years, until that company was sold to AB Wood Products Limited in May 2014.  He said that he was made redundant before he transferred to AB Wood Products.

The factory where Mr Walsh worked in Ballylanders was destroyed by a fire on the night of July 7th 2018.  He said that he was advised by a company director that his job was secure and that he would be called back in when the factory re-commenced production.  He said that he was never issued with a P45 or any document confirming that his employment was ceased.

At the hearing, Mr Walsh said that, in June 2020, he heard that the company was going into liquidation.  He applied for a redundancy lump sum, but this was refused by the Department of Employment Affairs and Social Protection, because his application was submitted more than 52 weeks after he said that his employment was terminated.  On the form to apply for redundancy, Mr Walsh indicated that his employment ended on the night of the fire, on July 7th 2018.  In his submission in advance of the hearing, and in his evidence at the hearing, he said that he continued to work for his employer in 2018 and 2019 and that his employment was never terminated.  Until he was informed that the company was going into liquidation, Mr Walsh said that he expected to return to work at his old job.

Mr Byrne was appointed as the liquidator for AB Wood Products and he informed me at the hearing that the company was placed into liquidation on February 18th 2020.  He accepted that, to his knowledge, the complainant was not ceased as an employee.  He said that the employment of all the employees was terminated due to redundancy on February 18th 2020.

Section 7 of the Redundancy Payments Act 1967 (“the Act”), sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed[.]”

A definition of continuous service is set out at Section 4 of Schedule 3 of the Act: 

“…employment shall be taken to be continuous unless it is terminated by dismissal or by the employee’s voluntarily leaving the employment.” 

It is evident that Mr Walsh did not voluntarily leave his employment, and also, that he was not dismissed.  It is apparent from the evidence submitted by both parties at the hearing that Mr Walsh was not ceased as an employee before the company was placed into liquidation on February 18th 2020.

The High Court decision in Bolger v Showerings (Ireland) Ltd[1] was concerned with absence due to illness, but, in his findings, Mr Justice Lardner held that there is an onus on an employer to stay in touch with an absent employee and to follow certain procedures to effect a dismissal.  It is clear that, in the case on which I am required to adjudicate, the complainant was not dismissed.  He did not resign and it is my view that he was an employee of the respondent when the operation ceased in February 2020.  It follows therefore that, as he was not dismissed and did not resign, he is an employee of AB Wood Products Limited, in Liquidation.  I am satisfied that the application for a redundancy payment which Mr Walsh submitted to the respondent on July 2nd 2020 was submitted within the timeframe of 52 weeks which is stipulated at section 24(b) of the Act. 

I note Mr Walsh’s evidence that, when he transferred to the employment of the AB Wood Products on May 6th 2014, his employment was terminated by the “transferor,” Galtee Wood Products, and that he received a redundancy payment.  In respect of dismissal at the time of a transfer, regulation 5(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, provides as follows:

“(1)  The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.”

It is clear to me that the dismissal of Mr Walsh by Galtee Wood was in breach of this regulation and the redundancy of his job on the date of his transfer to AB Wood Products Limited is invalid.  I find that his service is continuous from the date that he commenced with Galtee Wood in 1994. 

In accordance with the findings which I have set out above, I decide that Mr Walsh is entitled to a statutory redundancy lump sum based on his weekly wages of €480.00 and his service from the date he commenced with Galtee Wood in 1994 until he is formally dismissed by AB Wood Products Limited, which was placed into liquidation on February 18th 2020.

Redundancy, liquidation