Complainant

Respondent

Parties

Aaron  O Sullivan

J & D Kearns Ltd

Representatives

Self-represented

Mr. Kevin Hegarty, Kevin Hegarty Solicitor

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-00048693-001

17/02/2022

In attendance:

For the Complainant:

Mr. Aaron O’Sullivan, Complainant (self-represented)

For the Respondent:

Mr. Kevin Hegarty, Solicitor

Mr. Danny Kearns – First witness for the Respondent

Mr. Jerome Kearns – Second witness for the Respondent

The Complainant worked as a plumber for the Respondent. The Complainant worked for the Respondent from 2015 until 2021 and submits that his job was made redundant by his employer and that he has received no redundancy payment.

The Respondent raised a preliminary point in relation to jurisdiction. The Respondent submits that the Complainant had a break in service and therefore did not have the requisite 104 weeks’ service, required in order to be eligible for a redundancy payment. The Respondent submits that all sites closed down on March 27th, 2020, due to the situation around Covid-19. The Respondent submits that Complainant was called back to work on May 18th, 2020, and worked away until September 2021, when he resigned/signed off, i.e. it disputes that a redundancy occurred at all.

As per his complaint form:

The Complainant submits that he was put on temporary layoff in September 2021 and was not called back to work. He submits that he sent the forms to the company address for his redundancy at the end of 2021 and has not heard a reply from the employer.

The Complainant gave evidence on his own behalf at the hearing.

He said that in September 2021, on a Monday the employees were told they were going to be finishing up on the Friday. He said that ‘we all planned ahead and got work for the following Monday.’ He said they were issued with no forms; that they were told it was a ‘temporary lay off’ and that he got ‘no call back.’

He addressed the point raised on behalf of the Respondent of the ‘break in employment’ in 2020. He said that he ‘never meant to cease his employment’ and that he thought it was to ‘claim some tax back.’ He said that he was placed on temporary lay off during Covid-19 (due to the national restrictions). The period of layoff ran from March 2020 to May 2020. He said that there was no break in service at the time.

He said, in relation to this claim herein, that he submitted forms to the employer towards the end of 2021, seeking a redundancy payment and received no reply. He said there were no forms. He said that on the previous period of layoff in 2020, he was in receipt of PUP (the pandemic unemployment payment) and that he was called back to work as soon as the HSA (Health & Safety Authority) allowed for it.

On this occasion, in September 2021, he said that there was a conversation with Mr. Danny Kearns who initially told people there were going to be laid off, and then a subsequent conversation where he said that the temporary lay off was not going to take place.

It was put to the Complainant on cross-examination, that the temporary lay off did not take place, and that he had been told he ‘may be laid off’ and had ‘jumped ship.’

The Complainant disputed the first point, stating that they were told on the Monday they would be finishing up on the Friday. He said that he ‘planned ahead for myself.’

This was distinguished from the layoff in 2020, when due to governmental restrictions on foot of Covid-19, sites were closed.

It was put to the witness, on cross-examination that he had ‘signed off’ ‘so that [he] would get a higher payment, or a tax rebate.’ The Complainant said that ‘never happened.’

It was put to him that when he returned to work in May 2020, he was on emergency tax.

He said that any ‘break in employment was not intended.’

It was put to him that not everyone – not all employees who were laid off by the Respondent employer in 2020 - had ticked the box he ticked, and that it may have been ‘unintentional’ but it ‘broke his continuity.’ The Complainant disputed this pointing out that he ‘came back’ to work as soon as it was allowed by the HSA. He said that there was an option to claim back tax, and that he did not intend or understand that he had ‘ceased employment’ – he said: “I didn’t realise that I was doing that.’ In his final comments, the Complainant emphasised: ‘It was not my intention to ‘cease employment.’’

The Respondent raised a preliminary point that the Complainant did not have the requisite 104 weeks’ continuous service, due to a break in service, which it submits occurred during a previous period of layoff. On his return, the Complainant was on emergency tax and it took approximately four (4) weeks to rectify that. The Respondent surmised that the Complainant had ticked the box saying that he had ceased employment on Revenue’s online form.

Mr Danny Kearns – first witness for the Respondent

The witness outlined that there was a meeting in mid-September, 2021, and that they informed the workers that ‘work was going slack’ and that the company ‘might be having a temporary layoff.’ He said that ‘put the frighteners on people.’

He said that there was a further conversation with the Complainant, on the Tuesday, and told him ‘if there are going to be layoffs, you’re not going to be one of them.’

He said, the Complainant responded: ‘Too late: I’ve got a job.’

He said that six workers left and three remained.

The witness maintained the position that the employees had chosen to resign.

The Complainant put to him on cross-examination: ‘Why did six people hand in their notice in one go?’

The witness said that ‘work was drying up, nothing was pricing, then as it happened work didn’t dry up.’

Mr. Jerome Kearns – the second witness for the Respondent

Mr. Kearns explained that he was not at the meeting himself when the workers were informed of potential layoffs, and that the build up to that meeting was that he and Mr. Danny Kearns were talking, ‘work was drying up’, and they thought they ‘may have to put some of the lads on temporary layoff.’ He explained that the Respondent would have to issue a letter for the workers to bring to the social welfare office. He said that layoff would typically have been six (6) to eight (8) weeks. He said that it could ‘not be any length of time, because after three (3) months, you have to bring them back or give them their redundancy.’ He was asked whether there was any ‘room for confusion’ as to whether people had been laid off or not. He said: ‘No.’

He said that there had been a previous temporary layoff in 2015.

He said that when the Covid-19 layoff happened, the company issued a letter for PUP (pandemic unemployment payment). That layoff was between March and May 2020.

Mr Jerome Kearns said that he does the wages and administration for the company. He said that the Complainant (and one other worker) were on emergency tax when they returned to work, that ‘it took about four weeks to get that sorted.’ He said: ‘The rest of the crowd didn’t do it.’ He said, of the two workers, including the Complainant: ‘Whatever the two boys clicked on, they ceased their employment with J&D Kearns.’ He said that it was done through the Complainant’s Revenue file, ‘myAccount’, that everybody has their own; the company does not have access to this/sight of this, just the notification that the two employees were not employees. He said that: ‘I only knew it must have been something they clicked on/did.’

The Adjudication Officer at the hearing, enquired of the witness as to whether he was surprised to discover that the two Complainants were on emergency tax, when he came to do the payroll in May 2020. He said: ‘Yes.’ She asked why it came as a surprise to him. He said that (of those who had been laid off, on their return) four (4) employees were not on emergency tax and two (2), including the Complainant, were. He said: ‘They must have done something to put themselves on emergency tax.’ The Adjudication Officer, at the hearing enquired of the witness: ‘When the employees were put on temporary lay-off on foot of the government restrictions re: Covid, was it the company’s intention to cease the employment relationship?’ The witness said: ‘No. Absolutely not.’

I find for the Complainant.

I find that neither the Respondent nor the Complainant intended for there to be a break in the employment relationship.

I further find that it was government policy at the time, in the context of the Covid-19 pandemic, for employment relationships to be maintained insofar as possible.

I accept the evidence of the Respondent’s second witness, Mr. Jerome Kearns, that subsequent to the period of layoff, he was surprised by the discovery that the Complainant was on emergency tax and had to be re-instated on payroll; and that it was not the employer’s intention to cease the employment relationship and not its understanding that the employment relationship had ceased, but rather that a period of temporary layoff had occurred. I further accept the Complainant’s evidence that it was not his intention to end the employment relationship, but that he may have ‘ticked the wrong box’ on Revenue’s form/website and I find as a matter of fact that that is not determinative of whether or not there is an ongoing employment relationship. In the absence of any written or oral communication between the Respondent and the Complainant to convey either party’s intention to terminate the employment contract in 2020, I am satisfied that it is not reasonable for the Respondent to infer from the circumstances, that the Complainant had terminated his employment contract at that time. I further note – in relation to a putative termination in the other direction - as set out in Ryan Redmond on Dismissal Law, 3rd Ed, 2017, at para 22.19 relying on Farrell -v- Farcourt Foods Ltd UD/610/1989: “An employee on lay-off has not had his contract of employment terminated and in such circumstances the issuing of a P45 does not necessarily constitute a termination.” 

I find as a matter of fact that a redundancy did occur at the end of the employment relationship, and that the Complainant did not resign. I prefer the Complainant’s evidence over the Respondent’s as to the sequence of events precipitating six employees leaving in one go. I accept that the Respondent made the Complainant’s role redundant, albeit not in a procedurally compliant manner.

Based on the above, I find that the Complainant had the requisite continuous service (104 weeks or more) in order to come within the net of the Redundancy Payments Act 1967.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Consolidation Act 2005 during the relevant period.

I find for the Complainant.

For completeness, I find that this was a redundancy which occurred unrelated to Covid-19, and that the redundancy occurred at the instigation of the employer, not the employee.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Consolidation Act 2005 during the relevant period.

I find that the Complainant is entitled to a redundancy payment from the Respondent employer in the following terms (as per his complaint form):

Date of Commencement: 09/02/2015

Date of Redundancy: 24/09/2021

Gross Weekly wage: This figure is capped at the maximum figure of €600 as his weekly wage exceeded that sum.

As per the terms of the Redundancy Payments Act 1967, no period of layoff is reckonable for the purpose of calculating service.

Redundancy Payment; Layoff; Requisite continuous service; Break in service;