Complainant

Respondent

Parties

Glenda  McCole

McKeever Taylor Solicitors

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Barry O’Mahony BL

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-00047276-001

21/11/2021

The Complainant commenced employment of 10th March 2014. The Complainant was a permanent, part-time, member of staff working two days per week. The date and fact of termination of this employment is in dispute between the parties.

On 21st November 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that she was entitled to a statutory redundancy payment in circumstances whereby she was laid off in March 2020 and had not returned to employment since. In denying this allegation, the Respondent submitted that the Complainant had in fact abandoned her employment by taking a job elsewhere during her period of lay-off. In addition to the same, they further submitted that the Complainant had not met the requirements of the Act in relation to triggering a redundancy situation following an extended period of lay-off.

A hearing in relation to this matter was convened for, and finalised on, 14th July 2022. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued submissions in advance of the hearing. At the Adjudicator’s request, further submissions were exchanged following the hearing in relation to a point of contention that had arisen in the course of the hearing. The Complainant gave evidence under affirmation in support of her complaint. The Managing Partner of the Respondent gave evidence in defense of the allegations raised.

At the outset of the hearing, the Respondent raised a preliminary issue as to the lawful referral of the complaint. Given the nature of the same, this will be considered after an outline of the substantive matter.

The Complainant commenced employment with the Respondent on 14th March 2014. At all relevant times, the Complainant’s role was described as that of “legal secretary”.  

On 20th March 2020, the Complainant was laid-off as a consequence of the restrictions arising from the Covid-19 pandemic. On 10th June 2020, the Complainant enquired as to when she would be required back in work. By response, the Respondent stated that they did not know, but would keep the Complainant informed in respect of the same. In December 2020, in circumstances whereby the Complainant believed that a number of members of staff had returned to work, the Complainant again emailed the Respondent requesting an update. By response, the Respondent again stated that they did not know when the Complainant would return and stated that they would keep her informed in this regard.

Some eleven months later, on 20th October 2021, the Complainant requested that she be made redundant by the Respondent. When the Complainant received no reply to this request, she referred the present Complainant.

In answer to question, the Complainant accepted that she had applied for and accepted employment elsewhere whilst on lay-off. She stated that she was required to earn an income during this period. She further submitted that this contract was not permanent in nature and she would return to the present employment in the event that she was asked to do so. She stated that the failure of the Respondent to communicate with her left her no choice but to seek work elsewhere but that this was only a temporary measure until she returned to the Respondent’s employment.

The Respondent accepted that the Complainant had been placed on lay-off in March 2020. They submitted that the effects of the pandemic reduced their need for support staff, with certain members of greater seniority return to work on a hybrid model.  Notwithstanding the same, given the reduction in all forms of activity in the sector, the Respondent did not require the Complainant to return to work for a significant period of time. In May 2021, the Respondent learned that the Complainant had accepted a position within the HSE and was in effect not in a position to be recalled to employment, should the Respondent have any requirement for her to do so. While the Complainant did email on 20th October 2021 seeking a redundancy payment, the Respondent was of the view that no redundancy situation existed at the relevant time. 

By submission, the Respondent stated that Complainant had abandoned her employment by accepted a full-time permanent role elsewhere. They submitted that had the Complainant intended to return to work, she would have informed the Respondent of the same, prior to accepting a full-time contract of employment elsewhere.

Notwithstanding the foregoing, the Respondent submitted that the Complainant had not complied with the requirements of Section 12 of the Act, regarding the triggering of a redundancy situation following a period of lay-off.

Finally, the Respondent submitted that if the date of dismissal is deemed to be 20th March 2020, the complaint is statute-barred for the purposes of the present Act.

In the present case, the Complainant had alleged that she in entitled to a redundancy payment following an extended period of lay-off. By response, the Respondent has alleged that the Complainant effectively abandoned her contract of the employment, in effect terminated the same, by accepting alternative employment in May 2021.

In this regard, Section 7(1) of the Act provides that,

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off…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…”

The Respondent’s contention in this regard is that in circumstances whereby the Complainant abandoned her employment in May 2021, she was neither dismissed not entitled to redundancy by virtue of Section 12. It is common case that in May 2021, the Complainant was laid-off by the Respondent on foot of the restrictions arising from the Covid-19 pandemic. In this regard, Section 11 states that lay-off occurs whereby,

“…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….”

In this regard it is noted that the section is silent as to the requirements of the employee during a period of lay-off. In circumstances whereby an employer cannot provide work for an employee on a temporary basis, there is no statutory barrier to an employee seeking temporary employment elsewhere during this period.

The Respondent has submitted that in commencing employment elsewhere during this period lay-off, the Complainant abandoned their contract of employment, effectively terminating the same. The first point to note in relation to the same, is that the Respondent did not correspond with or make any form of contemporaneous enquiry with the Complainant in relation to this matter, simply assuming her resignation on their understanding of the matter

In Redmond on Dismissal Law, Ryan, 3rd Ed, 2017 at para 22.25, relying on the UK case of Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156, it was stated that in relation to a doubt as to a resignation,

“The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

In support of their position, the Respondent opened the case of Tina Casey v Dunnes Stores [2003] 14 E.L.R. 313 and quoted the following passage,

“For a dismissal to occur an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just. Termination is understood to mean ‘coming to an end’ and this import should be communicated to either party, directly or indirectly, or must be understood by virtue of the nature and extent of the circumstances of the case, or reasonably inferred therefrom.”

They submitted that on the acceptance of the alternative position, the contract expired by the reason of her taking up said position. They further stated that the nature of the position evidenced by the Complainant’s intention to terminate her employment.

Notwithstanding the foregoing, it is noted that the above-mentioned passage emphasises the “communication” of the ending of the contract. In the present case, no such communication was forthcoming from the Complainant, nor was any clarification sought by the Respondent. In addition to the foregoing, it cannot be said that that the Complainant’s resignation could be “reasonably inferred” by the Respondent when they were unaware as to the details of the same. In this regard, I note the Complainant’s evidence was that she sought out and accepted the job out of financial necessity but intended to return to the employment if she was required.

On 21st October 2021, the Complainant issued further correspondence to the Respondent. Herein, she stated that that from 1st October of that year, the “emergency period” for the purposes of the present Act had ended and she was entitled to claim redundancy. The Complainant has submitted that this correspondence complies with the requirements of Section 12 in relation to the triggering a statutory redundancy payment.

In this regard, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Having regard to the foregoing, there is no doubt that the correspondence of 21st October complies with the notice requirement of the provision. Furthermore, it is common case that the Respondent did not respond to this correspondence prior to the referral of the present complaint and consequently did not meet the requirements for counter notice set out in the latter parts of the section.

The Respondent’s case in this regard rests with the requirement that the Complainant accrues “four or more consecutive weeks” of lay-off prior to issuing notice under Section 12(1). In this regard they referred to Section 12A(1) of the Act (as amended), which provides that,

“Section 12 shall not have effect during the emergency period 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, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.”

They submitted that in circumstances whereby the “emergency period” for the purposes of this provision did not expire until 30th September 2021, the Complainant could not have accrued lay-off for the purposes of Section 12 during this period in time. As a consequence of the foregoing, by 21st October 2021, the Complainant had accrued no more than three weeks of lay-off for the purposes of Section 12. Following from the same, the Respondent submitted that the Complainant improperly invoked Section 12 on 21st October.

In this regard, it is noted that Section 12A(1) operated to suspend the entirety of Section 12 during the “emergency period”. Said suspension was lifted on 30th September 2021 and thereafter the Complainant could avail of the protections set out therein. Having regard to the foregoing, it is apparent that on the date in question, the Complainant had been on lay-off a considerable length of time, far in excess of what is required by the provision. Section 12A(1) does not operate so as to render all lay-off accrued prior to 30th September irrelevant for the purpose of the Act, rather it prevented an employee from utilising the mechanism set out in Section12(1) until such a time as the “emergency period” came to an end.

As a consequence of the foregoing, I find that the Complainant’s met the requirements set out in Section 12 of the present Act and her appeal succeeds.

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.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following:

Date employment commenced:  14th March 2014

Date lay-off commenced:             20th March 2020

Date Employment ceased:           21st October 2021

Gross Weekly wage:                      €176.00

The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Lay-off, Emergency Period, Alternative Work