Complainant

Respondent

Parties

Ruairí  Doyle

Jack Fitzgerald Electrical

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

 Self

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-00040344-001

09/10/2020

This case is concerned with an appeal by the Complainant against the decision of the Respondent to refuse to pay the Complainant statutory redundancy after a period of lay-off commencing in March 2020. It is agreed that the Complainant commenced employment with the Respondent on 08.02.2016 and that the rate of pay for the purposes of this complaint is €20800. Whether there was a redundancy at the relevant time is disputed. The applicability of the Redundancy legislation to the circumstances surrounding claims for redundancy during Covid restrictions is also an issue to be considered.

The Complainant gave evidence that he was employed by the Respondent as a warehouse manager/electrical technician. He last worked for the Respondent in March 2020 when he was laid off due to Government led Covid restrictions and was placed on PUP. Asked to clarify the date of his redundancy, he stated that, based on correspondence received from the Respondent he regarded 14 September 2020 as the date when he was made redundant. This date related to the contents of a letter from the Respondent in which he wished him all the best for the future and from that letter, the Complainant took it that he was being let go.

He tried to contact the Respondent by telephone to sort the situation out, but his calls were unanswered. When he contacted the shop when it reopened later in 2020, he was told by a staff member that they were busy. He also heard that the Respondent took on other staff and advertised for an electrician. His applications for redundancy were rejected by the Respondent. On 9 October 2020 he made a complaint to the WRC. At the hearing, the Complainant acknowledged that he was aware from the WRC, that the entitlement of workers to claim redundancy was suspended for periods during Covid.

The Complainant was not made redundant. On 27 March 2020, the business was closed, and staff were laid off due to Covid 19. On July 6th, 2020, he wrote a letter for the Complainant stating that the Complainant had not returned to work. This was to confirm he was still on lay off for the purposes of PUP and was issued in response to a text received from the Complainant on July 2nd. In June/July 2020, the Complainant looked for a redundancy payment. The Respondent spoke to his accountant who advised he could not do so as he may be reemploying staff and the complainant at a future date. On 14 September 2020 he made it clear that this was a continuing lay-off and not a redundancy situation and then went on to wish the complainant well as he seemed to be ending the employment.  The business did reopen when restrictions were lifted but was conducted mainly behind closed doors and did not substantially recover for some time. The Respondent himself worked sixteen-hour days for a long time to cover the work which was required. Nobody in the employment was made redundant and while he did seek to take on an electrician, this was for work which the Complainant did not do as he is not an electrician. References to him hiring staff to cover the work performed by the Complainant were denied as hearsay. The difficulties experienced by the business stretched out well into 2021 and on 6th October 2021 he offered the Complainant his job back, to commence in November 2021.

This is a very specific complaint based on an appeal against the refusal to pay redundancy in 2020. It is not a claim of alleged unfair dismissal or an appeal against a decision not to re-employ the Complainant prior to submitting his complaint or the delay in offering him a return to work prior to October 2021. The file of communications shows that it was the Complainant who made the running on his claim for statutory redundancy commencing in June 2020 and continuing in July and September 2020. These applications seemed to be based on some sense of entitlement to a redundancy payment in spite of the fact that the Complainant was in receipt of a PUP and not a jobseekers payment. The fact that he was in receipt of PUP did not prevent him from seeking alternative employment. However, and this is key to the Respondents justifiable defence-in March 2020 the Government temporarily suspended those terms of the Redundancy Payments Act which, in normal circumstances allows workers to claim redundancy after a period of four weeks continuous lay off, or six in some circumstances where a return to work cannot be confirmed. While the suspension of the relevant terms did not prevent employers implementing redundancies, there is nothing in this case to support a claim that the Complainant was in fact made redundant prior to the date of his complaint-October 2020. And indeed, if as he suggests, that his position was replaced by other employees, then it could be said that his position was never actually made redundant, bearing in mind that by definition, it is the post and not the person which must be made redundant in order for the postholder to qualify for statutory redundancy.

Regarding the letter of 14 September 2020, which the Complainant stated triggered the complaint to the WRC, while there is no obvious reason why the Respondent would have wished the Complainant well in the future at that time, his correspondence also made it very clear to the Complainant that he was not being made redundant.

Given that the temporary suspension first introduced in March 2020 continued until 17 September 2020 and was later extended until 30 November 2020-those periods of the Government led suspension covered all of the dates when the Complainant sought to be paid redundancy, including the date of the complaint to the WRC, the complaint cannot succeed, on grounds that the Complainant was not entitled to make such a claim during that time while he was on a Covid related lay-off and payment .  Furthermore, and for the avoidance of any doubt in the matter, in the period March to September 2020, during which period his applications for redundancy payment were made, the Respondent repeatedly made it clear to the Complainant that his employment was not ended on grounds of redundancy and the position of the Respondent that the position held by the Complainant was not made redundant during that period is also accepted. The appeal by the Complainant against the refusal of the Respondent to pay him statutory redundancy in 2020 is not a valid complaint. The appeal is therefore disallowed.

CA-00040344 The appeal by Ruairi Doyle against the decision of Jack Fitzgerald Electrical not to pay him statutory redundancy on or before September 2020 is disallowed.

Redundancy -Covid related lay-off.