ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035854

Parties:

	Complainant	Respondent
Parties	Martin Mullally	Thomas Farrell Farrell Catering

Representatives

Pat Carroll CItrus HR

Complaint(s):

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-00046991-001	04/11/2021

Date of Adjudication Hearing: 22/07/2022

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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.

Background:

The Complainant was employed as a HGV driver/operative since 14th July 2008.

Summary of Complainant’s Case:

The Complainant was employed as a driver/operative of mobile catering units from 2008. He was the only full-time employee. He was laid off due to Covid-19 in March 2020. The business began trading in March 2021 which could be seen from social media but he was not invited back to work. He only received one call in July 2020. On 30th September 2021 the suspension of lay-offs due to Covid-19 ended.

On 5th October 2021 he sent a form RP77 requesting redundancy to his employer by registered post. He received a reply on 15th October 2021 outside the seven day period, inviting him back to work on 26th October 2021. As he had obtained another job he wrote asking for details of the role, as he did not want to hand in his notice until this was received. He did not receive a response and made his complaint of non-payment of redundancy. He believes his employer only offered him a job in response to his request for redundancy as it has been trading.

Summary of Respondent’s Case:

The Respondent employed the Complainant as HGV Driver and assistant. The parties had a good relationship and never had any issue. In March 2020, all staff were laid off except the managing director, one part-time occasional employee and one person to assist with maintenance of the cabs.

The Respondent denies it was operating its normal business in 2020 and 2021. It has significant losses, financial accounts were provided to the WRC. In July 2020 the Respondent spoke to the Complainant but no return to work was imminent. In November 2020 the Complainant applied for redundancy, but the moratorium applied until 30th September 2021. On 5th October 2021 the Complainant applied for redundancy. On 15th October 2021, the Respondent wrote requesting the Complainant’s return to work on 26th October 2021. On 23rd October 2021, the Complainant emailed requesting details of the offer to establish was it a reasonable offer of work. On 30th November 2021, the Respondent confirmed the Complainant’s existing contract would be honoured.

The Respondent’s position is there are no grounds for redundancy.

Findings and Conclusions:

This complaint was delegated to me by the Director General pursuant to S39 of the Redundancy Payments Acts 1967. I have heard the submissions and evidence of the parties, and considered the written submissions.

The entitlement to redundancy payment arises in Section 7 (1) of the Redundancy Payments Act 1967. 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 immediately before the date of termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of 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 that business in the place where the employee was so employer, 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 henceforth 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 henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(2A) ………………………..

(3) For the purposes of subsection (1) an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks…

S12 of the Redundancy Payments Act 1967 :

(1) An employee shall not be entitled to a 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 lay-off or short-time, he gives to his employer notice (notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time….

S13 (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 service of the notice of intention to claim, the employer gives to the employee notice (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……

The Complainant was laid off by his employer due to the Covid-19 pandemic in March 2020 and his right to a redundancy payment due to lay-off was postponed until 30th September 2021 pursuant to S12A of the Redundancy Payments Act 1967.

The Complainant produced some evidence of trading during the period but the Respondent denied this was ordinary trading which required an assistant and said he was operating at about 15%. Significant losses can be seen from financial accounts during the period 2020 and 2021.

The Complainant produced evidence of service of a notice of intention to claim redundancy by registered post on 5th October 2021, delivered on 6th October 2021. S13 of the Act requires an employer’s counter notice to be given to the employee within seven days of the date of service 6th October 2021. This did not occur. The Complainant did not receive a counter notice until 15th October 2021. This was the first time he was invited to return to work on 26th October 2021. The Complainant sought further information regarding the offer terms to return to work on 23rd October 2021, but no response was received until 30th November 2021 nearly 6 weeks later. The Complainant wanted more information as he had another job. He said there were other people working in the yard, but was not given his job back. The owner gave evidence the first time he required a HGV driver was end of October 2021.

In light of the employer’s non-compliance with S13 of the Act, and having considered the evidence of the parties at hearing, I accept the Complainant’s evidence that the counter-notice was not served in compliance with S13 of the Redundancy Payments Act 1967. In addition, I am not satisfied that it was reasonably expected the Complainant would have been employed for a minimum period of 13 weeks in the role offered to him commencing 26th October 2021 as required in the Act, if this was the first job the Respondent had where a HGV driver was required.

I find the complaint is well founded and the Complainant is entitled to a statutory redundancy payment from 14th July 2008 to 30th March 2020, based on earnings of €353.00 gross per week. This is based on the Complainant being in insurable employment under the Social Welfare Acts during the period.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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: 28th April 2023

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Redundancy payment, offer of employment