Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Catherine Webberley Wilkinson & Price

Jamie Ensor Dillon Eustace

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-00035507-001

30/03/2020

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

CA-00035507-002

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984.

CA-00035507-003

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035507-004

30/03/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Acts, 1967 and has submitted that he did not receive any redundancy payment (CA-00035507-001).

The Complainant is seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Acts, 1967 and has submitted that he was dissatisfied with a decision of a Deciding Officer in relation to a redundancy lump sum (CA-00035507-002).

The Complainant is seeking adjudication by the Workplace Relations Commission under section 9 of the Protection of Employees (Employers’ Insolvency) Act 1984 and has submitted that the Minister for Social Protection failed to make a payment  that was due to the Complainant under the Insolvency Payments Scheme (CA-00035507-003).

The Complainant is seeking adjudication by the Workplace Relations Commission under section 11 of the  Minimum Notice & Terms of Employment Act, 1973 and has submitted that he did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof (CA-00035507-004).

The Complainant commenced employment with the Respondent on the 11th April 1991. The Complainant was employed as a printer and his gross pay was €686.00 per week (€605.00 net) for 39 hours worked per week.

The Complainant remained in continuous employment with the Respondent until late 2013 when he developed an acquired brain injury after sustaining a fall. Accordingly,  he was placed on long term sick leave from the 9th December 2013. The Complainant provided a long term medical certificate from the 17th April 2014.

The Complainant continued to be listed as the Complainants employer on his tax credit documents from the Revenue until 2017. The revenue records of the Complainant changed in 2017 as he was able to undertake some part time work in his wife’s business. Further, it was submitted that the Revenue have no records that a P45 was issued to the Complainant.

The Complainant submitted that he was never informed by the Respondent that his employment had been terminated or his position abolished. Until he was informed that the company was going into liquidation, the Complainant always believed that he was on long term sick leave and that his job was still available should he recover sufficiently.

The Respondent company went into liquidation in October 2019. The Complainant contacted the liquidators and enquired about his entitlement to a redundancy payment and a claim under the Insolvency payments scheme but this was refused by the Department of Employment Affairs and Social Protection (DEASP) because, according to the departments records, his employment with the Respondent ceased on the 31st December 2013.

These complaints were received by the Workplace Relations Commission on the 30th March 2020.

In relation to the Respondent Company, Joint Liquidators were appointed by special resolution on the 22nd October 2019. 

The Joint Liquidators were made aware of the Complainants claims in relation to his redundancy when they received a letter from the legal representatives of the Complainant stating his employment was never formally terminated by the Respondent Company and claiming he was entitled to his redundancy. A former Director of the Respondent Company informed the Joint Liquidators that the Complainant had left work in or around December 2013, following an accident where he acquired a brain injury, and that was the reason he had not been included in the employee register provided to the Joint Liquidators.

The Joint Liquidators submitted that they were informed by a former Director that he could not recall if the Complainants employment was ever formally terminated after his injury. Medical certificates were provided for a period of 4 to 5 weeks. Once these stopped they received no further correspondence from the Complainant and they ceased to pay his salary. The Respondent did not receive any correspondence from the Complainant that he considered himself to still be employed by the Respondent.

The Joint Liquidators facilitated the Complainant by submitting his claim for redundancy to the DEASP. On the 6th February 2020 the DEASP queried this claim stating their records showed the Complainants employment ended on the 31st December 2013.

The Joint Liquidators confirmed, at the hearing of this matter, that they had talked to the former  Directors of the Respondent Company and they do not recall if a P45 was ever issued to the Complainant.

The Joint Liquidators confirmed that they requested information from the Insolvency Unit of the Revenue Commissioners who responded on the 27th January 2021 confirming that the Complainant was an employee from 22nd March 2021 to 31st December 2013 however they stated that Revenue does not hold information on P45s beyond six years.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

Section 7 (1) of the Redundancy Payments Acts 1967-2012 states:

(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, 1952to 1966, 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.

Section 7(2) of the Redundancy Payments Act, 1967-2012, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or

The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish…

 Section 7(5) of the Redundancy Payments Act 1967 -2012, states-

(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.

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.”

Upon consideration of the evidence heard in the course of the hearing of this matter, it is evident that the Complainant did not voluntarily leave his employment, and also, that he  was not dismissed.

In the particular circumstances of this case wherein the Complainant was on long term sick leave, it is noted that the High Court decision in Bolger -v- Showerings (Ireland) Ltd 1990 ELR 184, was concerned with absence due to illness. Lardner, J., 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 and that he did not resign. Further, until the Respondent Company was placed into liquidation on the 22nd October 2019, the Complainant expected, should he recover sufficiently,  to resume his employment with the Respondent.

I find therefore that the complaints  (CA-00035507-001 and CA-003557-002) under the Redundancy Payments Acts, 1967 – 2012 are well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     11th April 1991

Date of Termination:              22nd October 2019

Gross Weekly Pay:                   €686.00

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

Having found the Complainant is entitled to a redundancy payment, I find that the Complaint (CA-00035507-003) made pursuant to Section 9 of the Protection of Employees (Employers Insolvency) Act, 194, is not well founded.

Having found the Complainant is entitled to a redundancy payment, I find that the Complaint (CA-00035507-004) made pursuant to Section 12 of the Minimum Notice and Terms of Employment Act, 1973, fails.

Redundancy Liquidaton