ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00035804

Parties:

Complaint(s):

Date of Adjudication Hearing:  15/06/2022

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

Per Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.

I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.

A complainant must be able to show a minimum two years (104 weeks) of service in the employment.

Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).

In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission.

The Employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).

Of relevance in this case are the procedures around Lay-off. An Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal).

Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off.

Ideally, a Contract of Employment should reference the entitlement to put an employee on lay off or short time. Otherwise, it is not clear that an Employer can deduct wages per the Payment of Wages Act.

If an employee has been on short time (less than half wages), or been laid off for four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, the employee can give Notice in writing of the intention to claim redundancy on the expiry of that thirteen-week period (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time.  The Employee must give the employer the notice required or specified in the Contract of Employment or if none exists then must give at least one week’s Notice of intention to claim Redundancy. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice.

There can be no doubt that the Employer has a right to Counter this application but Part C of the RP9 very clearly states that any such counter notice must be in writing and must be given within seven days of service of the employees notice. Also, the Counter Notice should indicate that there will be a commencement of full-time work within the next four weeks of the date of service of the Complainant’s Notice.

A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days he or she is laid off.

Section12 A of the Redundancy Payments Acts 1967 was inserted by the Emergency Measures in the Public Interest (Covid-19) Act 2020. This temporarily suspended Section 12 of the 1967 Act 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 government policy in respect of Covid 19. Such an employee is not entitled to give notice of his/her intention to claim redundancy during the redundancy period. This applied from March 2020 to September 2021.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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.

Dated:   18th October 2022

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

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