Complainant

Respondent

Parties

Raymond  Murray

Hynston Ltd All Plant

Representatives

self

 Mr Bill Canning

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-00046853-001

26/10/2021

On or about March 2020 arising from Covid public health regulations and how that affected the Respondent company the Complainant was placed on lay-off. In June 2020 the Complainant was successful in obtaining temporary employment as a driver. Before he took that role he spoke to his employer and as no work was available with the Respondent, they both agreed it was the right opportunity for the Complainant. In August 2020 the Complainant’s employment while temporary became full-time with the Company who he was working with. Again prior to taking up that opportunity he met his employer. This dispute has its genesis on what each party believes what occurred at that meeting. The employer stating that it was a resignation and the employee believing he was continuing to work with another employer until his role resumed normal duties at a time in the future.

The Complainant stated that he couldn’t apply for redundancy until late September 2021 as technically he was still on lay-off. The Government had removed the right to apply for redundancy arising from being laid off from work on or about that time

The employee stated that he spoke to his previous employer after hearing a public information advertisement that the Government would make up a shortfall in any entitlement to a redundancy lumpsum arising from the extended period of layoff during Covid. He approached his employer believing he was entitled to redundancy. His employer stated that he was not up to speed with what this meant.

The employer sought advice on the matter and based on the facts that he shared with his HR consultant a letter was written which detailed the company’s position. It stated that on the facts he had resigned from the company and was not entitled to a redundancy payment.

The Complainant was taken aback by that letter as it stated that he had resigned from the Company and had taken up a fulltime role with another employer and that he had told his employer last August 2022 that is what he was doing. He denies this.

The employer stated that his recollection was that he was being told that the Complainant was leaving his company, and this was further reinforced when he handed back his keys to the yard.

The Company continues to have a need for a driver now and when the Complainant approached him for redundancy on or about October 2021, it didn’t make any sense to him, as that role was now available again. In fact, the directors were driving and continued to drive to keep that role available.

The Respondent stated that the employee was placed on lay-off and the contract was suspended. That lay-off solely arose from Covid and the very significant reduction in contract work. As the demand for services increased with the re-opening of the economy; driver positions once again are vacant and required by the business.

The Complainant has never been dismissed from his role due to redundancy. While he was placed on lay-off it was always the intent of the Company to offer him work once the demand returned for contract work.

Sworn evidence was given by both parties. Mr Barry a director of the company gave evidence under oath in reply to the Complainant’s sworn evidence.

It was accepted by both parties that up to this point in their relationship they both respected one another, and always would describe their interactions as fair and respectful.

The Complainant does not want to return to his previous employment as he believes making this complaint has soured or strained what was a previous good relationship.

The director Mr Barry, who gave evidence stated that he believed that the Complainant had resigned; however, based on available work, he could have his job back.

The facts are the Complainant could not apply for redundancy until the end of September 2021.

It is also a fact that he wasn’t dismissed from his job; the evidence given under oath captures conversations about the Complainant taking up other roles when he met with Mr Barry. The Respondent never initiated contact to state that his role was no longer required and arising from such a decision he would be made redundant.

Section 13 of the of the Redundancy Payments Acts 1967(Act) states:

Right of employer to give counter-notice.

13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

No written notice has been served on the Respondent by the Complainant of his intention to seek redundancy arising from being on lengthy lay-off. Section 12 of the Act states:

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 lay-off 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.

The legal requirement to serve notice in writing has not been met. Even disregarding this requirement, the Complainant has stated that he doesn’t want to return to his previous employer. His employer has stated that his job is there for him on the same terms if he wishes to return. However, the Complainant has now gained permanency in his current role and doesn’t want to leave that employment.

While the employer believed that the Complainant had resigned, he has offered him his job back. All communication between Mr Barry and the Complainant have taken place at the office or by phone. The Complainant other than his complaint form has not recorded in writing his requests to the Respondent. The Respondent other than through a letter dated 13th of October 2021 written by a HR adviser rejecting a claim for redundancy, had direct contact with the Complainant by meeting him or through phone conversations. There is no dispute about the meetings taking place. The dispute or difference between the parties relates to what happened in August 2020 and whether that was a resignation or not.

The Act states that there is a right to redundancy when:

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 F18[four years] ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The employee has not been dismissed by reason of redundancy. However, he had been on lay-off.

At section 11 the Act defines what is meant by short time and lay-off:

Lay-off and short-time.

11.— (1) 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 lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short time for that week.

In the absence of a formal written notice from the Complainant wishing to apply for redundancy arising from being placed on extended lay-off, he has not met that requirement set down by the Act when claiming a right to redundancy. However, even if that legal requirement had been met, the employer has disputed that the Complainant had been dismissed by reason of redundancy or could apply as there was a permanent role available for him. More fundamentally the employer stated that the Complainant had in fact resigned.

I find that the evidence supports the Respondent’s account that he had resigned as the Complainant returned his keys and no longer wishes to return to work for the Respondent. It is also the case that the Respondent employer has offered the Complainant his role back and he has declined it. The conditions or requirements as set out in the Act have not been established to support the claim for a redundancy payment. The Complainant has not been dismissed by reason of redundancy; the Complainant has not served a written notice of his intention to apply for redundancy; in any case the Respondent denies that the Complainant was still on lay-off and on balance I find that he had resigned on or about August 2020. Even if that is not the case, as the employer has stated that his role is open to him and he can return to work, the claim for redundancy cannot be maintained.

The complaint is not well founded and the appeal by the Complainant against the decision of the Respondent to turn down his application for a redundancy payment fails.

In the absence of a formal written notice from the Complainant wishing to apply for redundancy arising from being placed on extended lay-off, he has not met the requirement set down by the Act. However, even if that legal requirement had been met the employer has disputed that the Complainant had been dismissed by reason of redundancy and had in fact resigned. I find that the evidence supports that belief as the Complainant returned his keys on or about August 2020. He also no longer wishes to return to work for the Respondent. It is also the case that the Respondent employer has offered the Complainant his role back and he has declined it. The conditions or requirements as set out in the Act have not been established to support the claim for a redundancy payment. The Complainant has not been dismissed by reason of redundancy; the Complainant has not served a written notice of his intention to apply for redundancy; in any case the Respondent denies that the Complainant continued on lay-off rather he had resigned from his position and the evidence does support that position

The complaint is not well founded and the appeal by the Complainant against the decision of the Respondent to turn down his application for a redundancy payment fails

Lay-Off; Resignation