Complainant

Respondent

Parties

Padraig  O'Reilly

O'Reilly Accident Repairs Ltd

Complainant

Respondent

Anonymised Parties

Representatives

North Connacht & Ulster Citizens Information Service

No Appearance

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-00030458-001

22/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00030458-002

22/08/2019

The Complainant commenced employment with the Respondent on 24th March 2002. On 3rd January 2019, the Complainant received notification that his role was to be made redundant shortly thereafter. On 28th January 2019, during the Complainant’s notice period, he resigned his employment.

On 28th August 2019, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had failed to pay him his statutory redundancy, despite previously accepting the Complainant was entitled to such a payment. By responding submission, the Respondent submitted that the Complainant’s acceptance of work with a third party and the termination of his employment during his notice period disentitled him to said redundancy payment.

Following the referral of the complaints, the listing of the matter was delayed for numerous reasons. Firstly, the restrictions arising from the Covid-19 pandemic caused a lengthy and unavoidable delay in this regard. Thereafter, the matter was listed for hearing by means of the remote platform. Unfortunately, at the outset of the hearing, it became apparent that the Respondent’s internet connect could not support such a meeting, and the matter again stood adjourned. Following further applications for adjournment, the matter was set down for hearing on 16th December 2022 and duly finalised on that date.

Neither the Respondent, not any representative on their behalf, attended the hearing of the matter as scheduled. Having reviewed the file in this regard, I am satisfied that the Respondent was aware of the time, date and venue of the hearing. Having regard to the same, the matter proceeded in their absence. The Complainant gave evidence in support of his application. No further witnesses were called in the course of the proceedings.  

In evidence, the Complainant stated that he commenced employment on 24th March 2002. The Complainant worked an average of 39 hours per week and, towards the end of his employment, he received an average weekly payment of €641.71.

On 3rd January 2019, the Complainant received correspondence informing him that his employment was to be terminated by reason of redundancy. This correspondence further stated that the Complainant was to enter his statutory notice period of eight weeks the following day, and that all outstanding payments would be issued thereafter. From the period 1st January 2019 to 28th January 2019, the Complainant received his weekly wage. Whilst the Complainant was not offered work during this period, he understood that these payments were in satisfaction of his statutory notice entitlement.

Towards the end of the month, the Complainant obtained employment elsewhere. As the Complainant was still in receipt of his statutory notice payments, he presented form RP6 to the Respondent. On 28th January 2019, the Respondent signed and stamped part three of said form. At this point, the Complainant believed that he had followed the correct course of action and that his redundancy payment remained due and owing.

Following the same, the Complainant did not receive his statutory notice payment. The Complaint submitted that under the Acts he had an entitlement to be paid the same.

In answer to a question posed by the Adjudicator, the Complainant accepted that the Respondent had offered him alternative employment in January 2019.  He stated that the nature of this employment was a collection of odd jobs, including cleaning the Respondent’s house. He stated that the nature of this role was not in any way compatible with his previous employment, that  it did not provide the same amount of hours and did not provide any stability for him as employee. Notwithstanding the same, the Complainant submitted that the Respondent had signed form RP6 after this date and that his accountant had confirmed that his employment had been terminated on the grounds of redundancy by way of correspondence dated 10th October 2019.

Neither the Respondent, not any representative on their behalf, attended the hearing of the matter as scheduled. Having reviewed the file in this regard, I am satisfied that the Respondent was aware of the time, date and venue of the hearing. Having regard to the same, the matter proceeded in their absence.

In the present case, the Complainant has alleged that they are entitled to a statutory redundancy payment. By response, the Respondent submitted that the Complainant became disentitled to the same when he declined an offer of alternative employment within the organisation and secured employment elsewhere.

Initially, it appears that the Respondent accepted that a redundancy situation arose within the organisation. Their correspondence of 3rd January expressly states that the Complainant’s employment was to be terminated on the grounds of redundancy. Furthermore, the correspondence states that the Complainant was to commence his statutory notice period the following day, 4th January, with all statutory payments to follow thereafter. The clear and unambiguous import of this correspondence is that the Respondent confirmed that the Complainant was to be made dismissed on the grounds of redundancy, and gave a date on which said termination was to take effect.

During this notice period, the Complainant accepted an offer of employment elsewhere. On foot of the same he presented form RP6 to the Respondent for his review. The purpose of this form is to allow an employee to effectively resign their employment during a notice period without interfering with their statutory notice entitlement. In evidence, the Complainant stated that the Respondent made an offer of alternative employment when this form was presented to him, however the Complainant did view the same as being a suitable alternative to redundancy. Following this discussion, the Respondent completed part 3 of the form. The completion of this part of the form is designed to be in compliance with Section 9 of the Act. In this regard, Section 9(1)(a) provides that,

“…an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice…”

The completion of part three of the form served to confirm the Complainant’s final date of employment to 28th January 2019, in compliance with Section 9(1)(a) above. It is noted that if the Respondent had issues regarding this request, he could have completed part 2 of the form which stipulates that the employee must stay in employment until the completion of the statutory notice period.

Having regard to the totality of the foregoing points, I find that the Complainant remains entitled to a statutory redundancy payment, and consequently his appeal is allowed.

CA-00030458-001

I find in favour of the Complainant and allow the Complainant’s appeal.

In these circumstances, the Complainant is entitled to a statutory redundancy payment based on the following information.

Date of Commencement:             24th March 2002

Date of Termination:                     28th January 2019

Average Weekly Wage:                 €641.71

CA-00030458-002

At the hearing of the matter, it was accepted that this complaint is duplicate of the matter listed above. In such circumstances, the appeal is not allowed.

Redundancy, Date of Termination, Alternative Work