Complainant

Respondent

Parties

Andrzej  Garanin

Woodstown Bay Shellfish Limited

Representatives

Deirdre Canty SIPTU

 Naomi Barlow

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-00046567-001

06/10/2021

The complainant was laid off indefinitely by the respondent without receiving a redundancy lump sum contrary to the Redundancy Payments Act 1967.  He commenced employment with the respondent on 7th August 2016 as a general operator harvesting oysters.  He worked varying hours with an average of 45 hours per week and was remunerated at €12 per hour.  The Respondents availed of the Temporary Wage Subsidy Scheme (TWSS) during the period of the pandemic.  They wrote to the complainant in March 2020 regarding payment of his wages in accordance with the total allowable payment in accordance with Revenue at the time.  On 8th October 2020 the respondent wrote again to the complainant with the title “Covid-19 Staff Lay-off” stating that                          “due to the huge financial impacts COVID-19 has had on our family business since the beginning of the year, we are now in a position where we are being forced to lay off some staff.  Unfortunately this means we can no longer offer you a position with us at this time”.  It went on to state the last working day was 5th October 2020 and offered a reference.  No offer of redundancy was forthcoming.  It is the understanding of the complainant’s representatives that the business continued, did not close and oysters continued to be farmed.  It also appeared that some staff were kept on and others not.  Some staff that had been let go returned, others did not.  There was no clarification on how these decisions were made.  The complainant remained on lay-off and attempted to retrieve annual leave through his union.  The respondent responded on 1st February 2021 and confirmed they posted a cheque for the outstanding leave, which also appeared to confirm cessation of employment from October 2020.   The complainant’s union sought a redundancy payment on his behalf.  They wrote to the respondent in July and August 2021, and issued RP77 form by registered post on 28th July 2021.  The respondent did not respond to the matter except to say they were waiting on Government supports and were not in a position financially to make redundancy payments.      The Union wrote again to the respondent on 5th October 2021 alerting them that the suspension of section 12 of the Redundancy Payments Act had been lifted since 30th September 2021 and attached the RP9 form seeking redundancy payment.                                                It is contended that the complainant is entitled to redundancy as per the Act as no work has been offered to him and he has given written notice of application for redundancy in part B of the RP9 form on 5th October 2021.  It is submitted that the complainant meets the criteria set out in the amended legislation and his reckonable service is from 7th August 2016 up until when he issued the RP9 form on 5th October 2021.                                                                                                              

The respondent made written and aural submissions summarised as follows:

The company is a small family business growing oysters and exporting them to China.  Due to the Pandemic, 100% of business was lost, and due to this, the company has had financial difficulties over the past two years.  Regrettably it was necessary to lay off staff and the complainant was laid off on 5th October 2020.  Lay offs were based on performance reviews and length of service.   A number of points in the complainant’s submission are inaccurate or misleading.  The company did have to continue keeping oysters but had zero sales or income, which made the financial situation worse, with operational costs and no income.  It was the respondent’s understanding that the Emergency Measures in the Public Interest Bill 2020 meant that as an employer, the respondent would not have to pay redundancies which occurred because of the Pandemic, and that if later it became an obligation, that the Government would provide financial assistance to those businesses struggling to cope.  Regarding the complainant’s submission that the union wrote in July and August regarding redundancy, it should be noted that the suspension of section 12 of the Redundancy Payments Act was still in place at that time and it was the respondent’s understanding that the complainant was not entitled to claim redundancy at that time.  The respondent has written to the union explaining their position and it is regrettable that there has been no assistance forthcoming from Government in the situation.  The respondent regrets that the matter has had to come before the WRC and if it is the case that the complainant is entitled to redundancy in respect to Covid lay off, will endeavour to ensure that he receives what he is due.

The complainant was laid off it seems indefinitely on 8th October 2020.  The respondent considered that he was not entitled to redundancy payment due to the emergency legislation introduced in 2020.  However, as has been pointed out this emergency measure was effectively lifted in September 2021.  The complainant served his redundancy claim on the employer shortly thereafter.        The right of an employee to redundancy has not been permanently cancelled due to the emergency measures brought forward.  I note that the respondent based the lay offs on performance reviews and length of service.  I also note that some staff laid off were not brought back to work, including the complainant in this case.  The evidence adduced at the hearing shows the respondent decided to carry on the business with fewer employees.  I find therefore that the complainant is entitled to statutory redundancy payment, in accordance with the definitions in the Act.  The amount of the lump sum should be based on the number of years’ continuous employment up to when the complainant gave notice of intention to claim redundancy payment.

Statutory redundancy, emergency measures lifted, complaint well founded