CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision ADJ-00043332 issued on 29 August 2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043332
Parties:
| Complainant | Respondent |
Parties | Liam Murray | OCR Waste Management |
Representatives | In person | No Appearance |
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-00053836-001 | 23/11/2022 |
Date of Adjudication Hearing: 24/05/2023
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 seeks a redundancy payment on the basis of the Respondent ceasing to trade, which he was not informed of.
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Summary of Complainant’s Case:
The Complainant gave evidence under Oath as follows: He commenced work as a lorry driver for the Respondent on 4 December 2006 His employment was continuous until he had a road traffic accident on 2 July 2015 in which his work lorry overturned and he sustained severe injuries and went on sick leave. He remains on sick leave and provided proof that from 2 July 2015 and for continuous basis until 26 May 2022 he provided sick certificates to the Respondent on a continuous basis, which were unacknowledged. Failure by the Respondent to engage with the Complainant The Respondent did not acknowledge or respond to the Complainant sending in sick notes. Following the Complainant’s sick leave (for which he did not receive any payment and for the day that the accident occurred he was only paid a half day) there was no engagement by the Respondent to the Complainant. Even when the Complainant sent the Respondent a social welfare application form to complete - to claim illness benefit - the Respondent failed to respond which necessitated the Dept of Social Protection having to request the Respondent to do so. The Respondent never advised him to stop sending in sick notes. They did not dismiss him. They did not give him notice that they had ceased trading. It was only when found out in June 2022 that the gates of the site were closed and no one answered the telephone that he realised that the company had ceased trading. They Respondent also failed to engage with the WRC and failed to appear at the Adjudication hearing. A CRO search of the company indicates that the company is still active (its status is registered as normal) no annual returns have been filed since 1 July 2020 and the secretary of the company changed in September 2021 from the previous Irish based secretary to a person who is not known to the Complainant at an address in Ghana. As the company has ceased to trade at its site in Roxborough, Co. Roscommon (the site is closed and phones are disconnected) and as the Complainant was not dismissed or was not given notice that the site was closing, he contends that he remained an employee of the Respondent until he discovered that his as lorry driver no longer existed. He says that his job became redundant then, but he was never informed of this. |
Summary of Respondent’s Case:
No Appearance by Respondent at Adjudication hearing. |
Findings and Conclusions:
Based on the uncontested evidence of the Complainant I am satisfied that the Complainant was made redundant. As to the establishment of the date of redundancy, there was no engagement by the Respondent with the Complainant: He was not contacted by them during his sick leave for a workplace injury from 2 July 2015 onwards, and although they received his sick certificates on a continuous basis until June 2022 they did not respond to him. They did not inform him that the site was closing and they did not dismiss him. It was only in June 2022 that following further surgery and periods of hospitalisation that the Complainant discovered that the Respondent site in Roscommon had closed and the phone lines were dead. It was at this point he discovered that the Respondent had ceased trading, even though the CRO records do not record that it had ceased trading (the CRO designated the Company as normal but it also records that no annual returns have been made since July 2020.) For the purpose of the Redundancy payments Acts, based on the uncontested evidence of the Complainant, I accept his evidence that the Respondent ceased trading. I determine the date of the Complainant’s redundancy to be the date that he discovered that the Respondent had ceased trading, namely 1 June 2022. As the WRC complaint was received on 23 November 2022, I find this complaint to be within time to allow me jurisdiction to decide this matter. I am satisfied that even though he was not informed that he was made redundant and that the Complainant’s position was made redundant on an unknown date between July 2015 and June 2022 I deem that date to be 1 June 2022 because that was the date that he discovered that the Respondent had ceased trading and his lack of knowledge prior to then was not due to any lack of effort on the Complainant’s part. I accept his evidence that he was not informed that or when the site was closing and he was not dismissed. Indeed he was permitted by his employer to continue sending sick certificates and the CRO search did not indicate anything other than his employment was continuing. I accept also that the company site was found to be closed, the phone lines are dead and the Company had ceased trading on 1 June 2022. In these circumstances I find that the Complainant was made redundant and is entitled to a redundancy payment
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Decision:
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.
Based on the uncontested evidence of the Complainant, which was given under oath, I am satisfied that a redundancy situation existed. I find that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment and based on the following facts: Commencement date: 4 December 2006 End of Employment: 1 June 2022 Gross weekly pay: €574.15 I confirm that the date that the Complainant started sick leave from 2 July 2015 and that he did not receive and salary or sick pay from 2 July 2015 for a period of 26 weeks or to date. |
Dated: 29 August 2023
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Redundancy - No appearance by Respondent - No engagement by the Respondent with Complainant or WRC. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043332
Parties:
| Complainant | Respondent |
Parties | Liam Murray | OCR Waste Management |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | In person | No Appearance |
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-00053836-001 | 23/11/2022 |
Date of Adjudication Hearing: 24/05/2023
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 seeks a redundancy payment on the basis of the Respondent ceasing to trade, which he was not informed of.
|
Summary of Complainant’s Case:
The Complainant gave evidence under Oath as follows: He commenced work as a lorry driver for the Respondent on 4 December 2006 His employment was continuous until he had a road traffic accident on 2 July 2015 in which his work lorry overturned and he sustained severe injuries and went on sick leave. He remains on sick leave and provided proof that from 2 July 2015 and for continuous basis until 26 May 2022 he provided sick certificates to the Respondent on a continuous basis, which were unacknowledged. Failure by the Respondent to engage with the Complainant The Respondent did not acknowledge or respond to the Complainant sending in sick notes. Following the Complainant’s sick leave (for which he did not receive any payment and for the day that the accident occurred he was only paid a half day) there was no engagement by the Respondent to the Complainant. Even when the Complainant sent the Respondent a social welfare application form to complete - to claim illness benefit - the Respondent failed to respond which necessitated the Dept of Social Protection having to request the Respondent to do so. The Respondent never advised him to stop sending in sick notes. They did not dismiss him. They did not give him notice that they had ceased trading. It was only when found out in June 2022 that the gates of the site were closed and no one answered the telephone that he realised that the company had ceased trading. They Respondent also failed to engage with the WRC and failed to appear at the Adjudication hearing. A CRO search of the company indicates that the company is still active (its status is registered as normal) no annual returns have been filed since 1 July 2020 and the secretary of the company changed in September 2021 from the previous Irish based secretary to a person who is not known to the Complainant at an address in Ghana. As the company has ceased to trade at its site in Roxborough, Co. Roscommon (the site is closed and phones are disconnected) and as the Complainant was not dismissed or was not given notice that the site was closing, he contends that he remained an employee of the Respondent until he discovered that his as lorry driver no longer existed. He says that his job became redundant then, but he was never informed of this. |
Summary of Respondent’s Case:
No Appearance by Respondent at Adjudication hearing. |
Findings and Conclusions:
Based on the uncontested evidence of the Complainant I am satisfied that the Complainant was made redundant. As to the establishment of the date of redundancy, there was no engagement by the Respondent with the Complainant: He was not contacted by them during his sick leave for a workplace injury from 2 July 2015 onwards, and although they received his sick certificates on a continuous basis until June 2022 they did not respond to him. They did not inform him that the site was closing and they did not dismiss him. It was only in June 2022 that following further surgery and periods of hospitalisation that the Complainant discovered that the Respondent site in Roscommon had closed and the phone lines were dead. It was at this point he discovered that the Respondent had ceased trading, even though the CRO records do not record that it had ceased trading (the CRO designated the Company as normal but it also records that no annual returns have been made since July 2020.) For the purpose of the Redundancy payments Acts, based on the uncontested evidence of the Complainant, I accept his evidence that the Respondent ceased trading. I determine the date of the Complainant’s redundancy to be the date that he discovered that the Respondent had ceased trading, namely 1 June 2022. As the WRC complaint was received on 23 November 2022, I find this complaint to be within time to allow me jurisdiction to decide this matter. I am satisfied that even though he was not informed that he was made redundant and that the Complainant’s position was made redundant on an unknown date between July 2015 and June 2022 I deem that date to be 1 June 2022 because that was the date that he discovered that the Respondent had ceased trading and his lack of knowledge prior to then was not due to any lack of effort on the Complainant’s part. I accept his evidence that he was not informed that or when the site was closing and he was not dismissed. Indeed he was permitted by his employer to continue sending sick certificates and the CRO search did not indicate anything other than his employment was continuing. I accept also that the company site was found to be closed, the phone lines are dead and the Company had ceased trading on 1 June 2022. In these circumstances I find that the Complainant was made redundant and is entitled to a redundancy payment
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Decision:
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.
Based on the uncontested evidence of the Complainant, which was given under oath, I am satisfied that a redundancy situation existed. I find that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment and based on the following facts: Commencement date: 4 December 2006 End of Employment: 1 June 2022 Gross weekly pay: €435.89 I confirm that the date that the Complainant started sick leave from 2 July 2015 and that he did not receive and salary or sick pay from 2 July 2015 for a period of 26 weeks or to date. |
Dated: 29 August 2023
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Redundancy - No appearance by Respondent - No engagement by the Respondent with Complainant or WRC. |