ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00027908

Parties:

Complaint(s):

Date of Adjudication Hearing:  06/05/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

This Complaint, made by a Driver against his former employer a Construction Company, refers to the non-payment of redundancy entitlements.

Summary of Complainant’s Case:

The Complainant submitted that he commenced employment with the respondent on 2nd January 2013. He maintained that he was temporarily laid off on the 16th December 2019 and received no holiday pay or notice pay. He then received a letter on the 16th January 2020 stating that there was no work available for him. This letter was addressed to the Social Welfare Local Office.

The Complainant sought a redundancy payment from the Respondent, but the Respondent did not provide a redundancy payment. The Complainant maintained there was no further contact from the Respondent. He maintained he submitted a RP50 form on a number of occasions. He had to seek alternative employment and got a new job in February 2020. When he again sought redundancy payment from the Respondent in March 2020 his request was not replied to.

The Complainant submitted that his gross weekly pay was €757.74, and that he had been initially working on a part time basis but at the time of the redundancy he was working full time basis.

Summary of Respondent’s Case:

The Respondent submitted that Complainant was an essential worker, they had a good relationship with the Complainant and his job was not made redundant.  The Respondent maintained that due to a downturn in work in 2019 there was a need to place the Complainant on short time work in December 2019, and there was no work available in January 2020. As the Complainant was seeking social welfare payments for the time no work was available, the Respondent provided the Complainant with a letter on 16th January 2020 so he could claim social welfare payments for a period of time.  The Respondent then sought to re-engage the Complainant in February 2020, but the Complainant did not accept a return to work.

The Respondent maintained there was a delay in progressing work on a site in December 2019 and this resulted in the work not being available until February or March 2020.  All of the staff employed took a pay cut over this period, and due to the delay employees had to be put on temporary layoff, including the Complainant.

The Respondent maintained it had engaged with the Complainant about the situation, including a call on 6th /7th February 2020 to ask the Complainant to return to work for three days which would increase to five days. The Respondent submitted that the Complainant had not received a P45 at this time as he had not been laid off or taken off the pay roll.

Whilst the Respondent maintained there was never a redundancy, it acknowledged that when the Complainant submitted a RP 50 for seeking redundancy it did not reply to him at the time on the basis there was a lot of mail that had to be dealt with at that time.

It was acknowledged the date of the P45 was 16th January 2020.

Findings and Conclusions:

The evidence submitted confirms that due a downturn in business the Complainant was placed on short time in December 2019, and then was advised there was no work available from January 2020. Other employees were treated similarly. It was the Respondent’s evidence that no redundancy situation arose because work did become available again during February 2020, but the Complainant did not accept this.

The Complainant maintained that he was in effect made redundant, and when he submitted a RP50 the Respondent did not reply to this, and therefore the Complainant submitted he had no option but to accept his role was redundant and seek alternative employment, which he was successful in achieving.

It is acknowledged that there is a conflict between the evidence provided by the parties as to whether a redundancy situation existed.  It is clear that the Respondent had no work from January 2020 and decided to seek alternative employment in February 2020.

Section 11(1) of the Redundancy Payments Act 1967, as amended, states Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as layoff.

Section 12 of the Act further states (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless— (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the layoff or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.  

Section 12 (2) of the Act states  Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim [Redundancy payment] given in writing to the employer by the employee on the date on which the notice is actually given.

Under section 13 of the Act, in circumstances where the employee gives notice of his intention to claim that a redundancy situation exists, the employer must, with seven days of receiving the service of notice of intention to claim redundancy, give counter notice in writing that he will contest any liability to pay a redundancy payment.

In the within case the Respondent is seeking to rely upon verbal communications with the Complainant and that these communications amount to notice to the employee that he was in fact only being laid off for a short period of time.  It is the Complainant’s contention that he sought written clarification of his redundancy by submitting the appropriate RP form that was not responded to.  It was not disputed by the Respondent that he did not reply in writing to the Complainant on the basis there was a lot of mail to deal with at this time.

Based on the above circumstances I find that the Complainant was laid off for a period for at least four weeks in January 2020 and when he sought to seek a redundancy payment in writing, the Respondent failed to provide written counter-notice at that time. I therefore find that a redundancy situation existed, and as such the Complainant was entitled to a redundancy payment.

Whilst acknowledging it was a difficult time for all the parties, I find the reliance by the employer that due to having to deal with a lot of mail at the time they failed to provide the written counter notice is incorrigible.  The Redundancy Payments Act is clear and must be adhered to.  After all, the situation that occurs in such circumstances relate to an employee’s livelihood being at stake. It is not acceptable in such settings for an employer, despite its circumstances, to ignore its own responsibilities when there are opportunities within the legislation to provide clear notice of a temporary cessation and a counter-notice in circumstances where an employee is seeking redundancy. I therefore find that the Respondent failed to adhere to its obligations under the Act, as amended.

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.

I have found the Complainant was made redundant.

The complainants start date was 2nd January 2013 and he was made redundant on 16th November January 2016, this being the referred to in the P45.  The Complainant has seven years and two weeks service (7.03 years’ service) with the Respondent.

The Complainant rate of pay was €757.74 gross per week.

I hereby decide the Respondent is obliged to pay the Complainant entitlement of 15.08 weeks’ pay as a Redundancy Payment, plus payment in lieu of his notice of four week spay at the rate of €757.74 gross per week, and payment for any annual leave entitlements that are outstanding at the time of the redundancy.

Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts."

Dated:   17th November 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words: