Complainant

Respondent

Parties

Pawel  Sowinski

Serdang Limited  T/ A Blarney Hotel and Golf Resort

Representatives

  Appeared In Person

 Gordon Callinan, General Manager

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-00044233-001

19/05/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. There were some technological delays before the hearing commenced at 10.10 hrs.

On 19 May 2021, the Complainant, a Polish National, Hotel worker from March 1, 2006, claimed a lump sum redundancy payment on the conclusion of his employment by means of a complaint form received by the WRC.

The Respondent was represented by the General Manager and has rejected the claim as the complainant was ineligible for payment in terms of the local agreement.

Both parties approached the hearing as lay litigants and were welcomed as such.

The Respondent exhibited a final pay slip dated July 1, 2020 , post hearing . PRSI record of contributions and not benefits  were eventually received on May 9 ,2022. I did not receive the requested P60 from the complainant .

The Complainant submitted that he had worked as a Kitchen Porter from March 1, 2006, until the commencement of his sick leave in January / February 2017. The Complainant placed the wage of €390 per 39 hr week as his gross salary on his complaint form. He also reflected that the Company was in Liquidation.

The Complainant requested the support of a Polish Interpreter to assist him at hearing and this service was provided. The Complainant was accompanied by his Partner who gave evidence in the case.

The Hotel was habitually closed during the months January, February, and March annually. The Complainant outlined that he had completed his treatment in December 2019 and was prepared to return to work.

The Hotel did not re-open, and he was not provided with a P45 or notice of termination. He sought a lump sum redundancy payment.

Evidence of the Complainant:

The Complainant listened to the Respondent detail of the evolution of redundancies following a period of lay off at the Hotel.

The Complainant told the hearing that he was unclear on his employment status as he had not received a P45 at the conclusion of his employment

The complainant told the hearing that he was not included in any consultation or notification on redundancy. He confirmed that he had changed his address during his sick leave, which had commenced in 2017. The complainant was unsure of the duration of the sick leave

He said he had no recall of receiving a final payment of €80.80 as annual leave from the Respondent.

The Complainant submitted that he had not been represented in any redundancy talks at the Hotel. He clarified that he had not pursued the redundancy payment directly with the respondent as he was not certain whether he had been terminated or note.

The Complainant undertook to furnish his prsi records from January 2017 onwards in addition to the final pay slip. He confirmed that he had not received payment of social welfare from February 2020

Evidence of Ms B, Complainants Partner:

Ms B indicated that she was representing the complainant, but equally wished it to be known that she had been involved in the complainants attempts in seeking his redundancy payment.

Ms B had heard rumours within the hotel workforce that by end of March, early April 2020, the Hotel was expected to close.

The Complainant told the hearing that she visited the hotel three times to ask if it was opening as her partner was sick.

She confirmed that she had not received any documents on his behalf from the respondent.

She was not aware of temporary layoff.

She said that the complainant was not in the country during March 2020.

I received the PRSI records on May 9, 2022. I did not receive the requested P60s or the final pay slip which contained €80.80, or any proof of this sum having been received by the complainant.

I have relied on the pay slip provided by the respondent .

The Respondent rejected the claim outlined by the Complainant. Mr Callinan for the Company submitted that the complainant was not eligible for a lump sum payment of redundancy due to his long-term absence on sick leave. He submitted that the Complainant had fallen outside the 3-year averaging matrix applied to  the agreement on calculation of eligibility for redundancy.

Mr Callinan outlined that the Hotel was still trading and was not in liquidation. The business had changed owners a number of times from the complainants commencement date there .He accepted that the complainant had worked continuously .

He exhibited a copy of a contract of employment dated March 1, 2006,from an earlier employer  which contained a provision on lay off, notice period, but not specific to a Redundancy situation. He accompanied this by:

1 exhibition of letter to the complainant dated 31 January 2020 to a different address than that offered to WRC

2 exhibition of letter dated 3 March 2020 which confirmed a consultation process in line with obligations under the Protection of employment Act, 1977 -2014 regarding collective redundancies

3 exhibition of a letter dated 3 April 2020 which confirmed the complainant’s role as redundant.

The Hotel employed 50 workers and presided over collective redundancies of this grouping in June 2020. Mr Callinan confirmed that the Minister had been notified of the collective redundancies.

The redundancies were prefaced by consultation and multiple meetings with staff.

The Complainant did not have the recognisable service to qualify for redundancy as it was calculated on an average of 3 years. The Complainant had been absent on sick leave for a long duration in excess of that 3-year time frame. i.e., a 4-year period from 2016.

The Business did recognise employees on maternity leave for redundancy purposes, but the complainant was outside the grouping who attracted lump sum payments. An appeal was provided within 5 days. This was not utilised by the complainant.

Mr Callinan confirmed that he had not entered into direct contact with the complainant, but he was satisfied that he was ably represented by team meetings during the redundancy process.

He confirmed that the Complainant was paid €80.80 in annual leave in a final pay slip on July 1, 2020 and exhibited a copy of this post hearing .

The Respondent, while agreeing the complainant was made redundant, albeit in April, 2020, was contesting the claim for a lump sum redundancy payment.

I have been requested to consider this claim for a lump sum payment of redundancy on behalf of the complainant, which is being rebutted by the Respondent, who is relying on an agreement where the company paid redundancy to the workforce through the mechanism of collective redundancies.

In reaching my decision, I have had regard for the evidence of the parties and one witness in addition to documents exhibited during the hearing.

My jurisdiction in this case is under the Redundancy payments Act 1967.

The procedure for large scale redundancies such as described by the respondent is set down in the Protection of Employment Act, 1977. This applies equally to all employees.

Section 6(1) of that Act describes collective redundancies as dismissals arising from redundancy during any period of 30 consecutive days, where the numbers being made redundant are

-          At least 5 in an establishment normally employing more than 2o and less than 50

-          At least 10 in an establishment normally employing at least 50 but less than 100.

 Section 12 of that Act provides The Minister for Enterprise Trade and Employment is to be notified of the proposed redundancies not later than 30 days before the first dismissal takes effect.

The employer must cite the name of the company, total number of persons normally employed at that premises, numbers and description of categories proposed to make redundant, reasons for the redundancies, names and address of the trade unions or staff associations representing staff affected, dates surrounding consultation, criteria for selection. the redundancies cannot take effect before the expiry of the 30-day period beginning on the day of notification to the Minister

In C -188/03 Junk v Wolfgang Kuhnel, The CJEU decided that a redundancy took effect when the redundancy notice issued, not when the notice period expired.

There is a positive obligation to engage with representatives in reaching an agreement.

An issue arose very early in this case, that of the address retained for the Complainant by the Respondent. The Complainant has been residing in Poland but confirmed at hearing that he had changed his address during the course of his sick leave to the address on the WRC file. He freely admitted that he had not notified the respondent of his change of address. For me, this was a major oversight on his behalf.  The Complainant ought to have notified his employer of a change of address. It is a key point of contact for the parties and the inaccuracies resulting from this omission form the sub plot in this case.

I would also add that the Complainant delayed in seeking to resolve this matter . It was February 2021 by the time he applied for a redundancy payment at DSP level. I appreciate that he found it difficult to secure a response from the respondent, however , that delay was unwise .

Section 4 of the Redundancy Payments Act, 1967 provides guidance on the potential for eligibility under the Act

 Classes of persons to which this Act applies.

4.— (1) Subject to this section and to section 47, this Act applies to —

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005 ,

(b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and

(c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for —

(i) their attainment of that age, or

(ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act.

I find, having considered the complainants prsi records that he was in insurable employment as described in S 4(a) of the Act.

I have no evidence of a confirmed cessation in this employment outside the papers relied on by the Respondent at hearing. The complainant gave cogent evidence that he was never served with these documents, and he had not resigned his position.

I have reflected on this conflicted set of facts. I began to draw on the parallel reference to the overarching presence of the collective redundancies at this employment, where all 50 employees were made redundant.

I was not provided with the official record of notification to the Minister. Therefore, I could not establish whether the complainant was returned in that document as a nominated member of the collective redundancy pool.

I find that I have to conclude that the complainant was not detailed in that obligatory notice. I say this as I have an expressed doubt that the complainant was ever served with the letters attributed as sent in this case. The letters were all marked strictly private and confidential and to be opened by addressee only. I accept the complainant evidence that he did not receive these letters.  The Respondent did not give evidence that the letters were returned.

 This allows me to conclude that he was not properly placed on lay off. He did not receive social welfare payment of job seekers benefit in the early months of 2020 The prsi records reflect that no contributions were made but do not detail benefits claimed by the complainant. I accept his evidence that he did not receive social welfare benefits at job seekers level (which might reflect temporary layoff) during this period.

Neither can I establish that he was dismissed in accordance with Section 1 of the Act where,

Section 1 of the Act sets out the law on what is considered to be a date of dismissal.

 date of dismissal”, in relation to an employee, means—

(a) where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and

(c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires,

and cognate phrases shall be construed accordingly.

As I have found that the Complainant was not properly on notice of a collective redundancy, my attention was next drawn to the payment of €80.80 in July 2020.

I accept the Respondent evidence that this was paid. The Complainant had no recall of this and did not provide me with details of payment. The Respondent attributed this payment to unpaid annual leave. Given that the complainant was on undisputed sick leave since early 2017, this sum should have reflected a consideration of the entire sick leave for annual leave purposes.

The Complainant was not a participant in the consultation meetings prior to the collective redundancies in April 2020. He remained in an employment limbo until the certainty that I have associated with the payment of annual leave in accordance with Section 23 of the Organisation of Working time Act, 1997 as cesser pay.

I must, therefore, conclude that the complainant was dismissed on July 1, 2020, on payment of the annual leave of €80.80 in the form of cesser pay .  This was exhibited on the respondent spread sheet on salary paid to the complainant. It was the sole entry from commencement of sick leave.

Dismissal by employer.

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice,

There is another consideration and that is the application of Section 12 A of the Redundancy Payments Act, 1967 to this period This endured to 30 September 2021 and prevented an employee in claiming redundancy from a Lay off situation during the covid pandemic. It did not prevent an Employer from effecting redundancies.

Operation of section 12 - emergency period

12A. (1) Section 12 shall not have effect during the emergency period 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, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

(2) Before the expiration of the emergency period, the Government may, at the request of the Minister made —

(a) after consultation with the Minister for Health,

(b) with the consent of the Minister for Public Expenditure and Reform, and

(c) having had regard to the matters referred to in subsection (3),

by order specify a date that is later than the expiration date of the emergency period specified in the definition of ‘emergency period’ or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to and including the date so specified.

(3) When making an order under subsection (2), the Government shall have regard to the following:

(a) the nature and potential impact of Covid-19 on individuals, society and the State.

(b) the capacity of the State to respond to the risk to public health posed by the spread of Covid-19.

(c) the policies and objectives of the Government to protect the health and welfare of members of the public.

(d) the need to ensure the most beneficial, effective and efficient use of resources.

(e) the need to mitigate the economic effects of the spread of Covid-19.

(f) the need to ensure a continued attachment to the labour market for workers who have been temporarily laid off or put on short-time as a result of Covid-19.

(g) the need to protect the relationship between employee and employer during the emergency period.

(h) the need to mitigate the increased risk of insolvencies in the event of a substantial number of redundancies occurring over a short time period resulting in permanent job losses.

(4) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(5) In this section —

‘Emergency period’ means the period beginning on 13 March 2020 and ending on 31 May 2020.

‘ Covid-19 ’ means a disease caused by infection with the virus SARS-CoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 ( S.I. No. 390 of 1981 ) or any variant of the disease so specified as an infectious disease in those Regulations

The emergency period commenced on 13 March 2020, but the provisions of S 12 A were not reflected in the respondent documentation. I found this a very unusual omission as the advice given in the January letter on claiming redundancy from lay off was overturned by Section 12A in March 2020.

This became more relevant recently on 19 April,2022 when the Redundancy Payments Amendment Act, 2022 was commenced. This provides for payments up to €2,268 to bridge the gap for those employees on lay off prior to redundancy and reflects that period of lull.

Section 7 of the Act outlines a

General right to redundancy payment.

7.— (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, 1952 to 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.

I find that the Complainant was made redundant by the operation of Section 7(2)(b) of the Redundancy Payments Act.

My next question is whether or not the Complainant is entitled to a lump sum payment in respect of that redundancy? This goes to the core of the respondent rebuttal. the Respondent accepted that the complainant was redundant but fell short of eligibility for payment of a lump sum in that respect

Schedule 3 of the Act provides necessary guidance here.

(Amount of Lump Sum

Section 19.

 1. (1) The amount of the lump sum shall be equivalent to the aggregate of the following:

(a ) the product of two weeks of the employee ’ s normal weekly remuneration and the number of years of continuous employment from the date on which the employee attained the age of 16 years with the employer by whom the employee was employed on the date of dismissal or by whom the employee was employed when the employee gave notice of intention to claim under section 12, and

(b ) a sum equivalent to the employee ’ s normal weekly remuneration.

(2) In calculating the amount of the lump sum, the amount per annum to be taken into account shall be that obtaining under section 4(2) of the Redundancy Payments Act 1979 at the time the employee is declared redundant. ]

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year. 

 3. (a ) For the purpose of ascertaining, for the purposes of paragraph 1, the number of years of continuous employment, the number of weeks in the period of continuous employment shall be ascertained in accordance with this Schedule and the result shall be divided by 52.

(b ) In ascertaining the number of weeks in the period of continuous employment, a week which under this Schedule is not allowable as reckonable service shall be disregarded. ]

Continuous Employment

4. For the purposes of this Schedule employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving the employment  , but for the purposes of this paragraph ‘ dismissal ’ does not include a dismissal within the meaning of the Unfair Dismissals Act, 1977 , and in respect of which redress has been awarded under section 7 (1) ( a ) or 7 (1) ( b ) of that Act ].

 4A. Notwithstanding anything in paragraph 4 (and anything in clause ( b ) of the definition of “ date of dismissal ” in section 2), the period of notice due to an employee under section 4 (2) ( a ) of the Minimum Notice and Terms of Employment Act, 1973 , but not given by the employer, shall, where the Tribunal so orders, be allowed as continuous service for redundancy purposes where, but for the failure of the employer to comply with the provisions of that Act, the employee would have qualified for redundancy payment. ]

 5. Where an employee’ s period of service has been interrupted by any one of the following —

(a ) any period by reason of —

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the State,

(v

(c ) a period during which an employee was absent from work —

(i) while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994 or to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(ii) while on parental leave or force majeure leave, or

(iii) while on carer’ s leave under the Carer’ s Leave Act 2001, 

( 

 (e ) any period during which an employee was absent from work while on paternity leave or transferred paternity leave under the Paternity Leave and Benefit Act 2016, ]

(f ) any period during which an employee was absent from work while on parent ’ s leave or transferred parent ’ s leave under the Parent ’ s Leave and Benefit Act 2019, ]

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 have interpreted the provisions of this section in the instant case as establishing that the complainant had continuity of service at this employment from March 1 2006 onwards to his date of termination as July , 2020 .  He had not resigned . Farrell v Gateaux ltd 547/100,.

The Complainant submitted that the hotel hosted an annual shutdown in the first three months of the year , but the complainants prsi records do not reflect a break in service .

However , by operation of section 8 (b)  on reckonable service , that continuity is offset by the  aftermath period of 26 weeks of  sick leave , ie  December  1,  2017 .

Reckonable Service

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, a dismissal within the meaning of the Unfair Dismissals Act, 1977 , and in respect of which redress has been awarded under section 7 (1) ( a ) or 7 (1) ( b ) of that Act,  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.

8A. The following absences shall be allowable as reckonable service:

……..

(i) while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994 or to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(ii) while on parental leave or force majeure leave, or

(iii) while on carer’ s leave under the Carer’ s Leave Act 2001,

I note that the Respondent appreciated the need to cover employees returned from protective leave with redundancy. It is my finding that the Complainant was also entitled to receive a lump sum redundancy payment in respect of his continuity of service, not interrupted by dismissal until July  1,2020, albeit off set on reckonable service by the continuum of that sick leave .

I cannot accept that he was curtailed in this by an agreement to which I cannot fix him to under collective redundancies . I find that the complainants employment status was overlooked during the collective redundancies, and he was “left behind”.

I have already stated my disappointment that the complainant had not provided a change of address to the respondent . This was a significant oversight .

The Complainant is entitled to receive a lump sum redundancy payment on the conclusion of his employment on  July 1, 2020 .

His claim for a redundancy lump sum is well founded .

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.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the complainant has established the existence of a redundancy situation and the complaint is well founded .

I find that the complainant is entitled to a statutory redundancy payment based on the following :

Date Employment commenced.  March 1, 2006

Date Employment ceased:        July 1, 2020

Gross Weekly wage:                        €390 .00

Breaks in service                                none ( sick leave January 2017 to January 2020 )

The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Redundancy and Concurrent sick leave