Complainant

Respondent

Parties

Gerard O'Brien

Speedline Engineering Limited

Complainant

Respondent

Representatives

Katie Glennon BL instructed by Hogan  Dowling McNamara Solicitors

 Bart O’Halloran Managing Director  

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-00044728-001

22/06/2021

The Complainant commenced his employment with the Respondent on the 2/9/2017. The Complainant was employed as a general operative worker with the Respondent. The Complainant worked with the Respondent on a full-time basis until the 24/1/2020 when he was placed on a temporary lay-off. This was confirmed by the Respondent in a letter dated 27/1/2020.  The Complainant was paid a weekly salary gross of €507.00 and net of €438.99 at an hourly rate of €13.00.

On the 22/6/2021 the Complainant referred a complaint to the Workplace Relations Commission pursuant to Section 39 of the Redundancy Payments Acts 1967 as amended, claiming that he is entitled to a statutory redundancy payment. The Respondent denies the claim on the basis that the Complainant does not have the requisite continuous service of 104 weeks as required under the provisions of the Act.

The complaint was heard at adjudication hearing on the 15/11/2022.

Counsel for the Complainant submitted that the Complainant has the requisite 104 weeks of continuous service and that by virtue of the fact that the Complainant was dismissed by way of redundancy he is entitled to a redundancy payment in line the with the provisions of the Act.   

It was submitted that the Complainant did not seek a redundancy payment from the Respondent in accordance with the provisions of the Act in respect of employees who are on lay-off in view of the fact that Section 12A of the Act was in force, which suspended the effect of Section 12, during the emergency period which coincided with the period that the Complainant was on lay-off.   

It was submitted that the Complainant commenced employment with the Respondent on the 2/9/2017 on a full-time basis. He was placed on a temporary lay-off on the 15/12/2017 and was reengaged by the Respondent on the 4/5/2018. The Complainant was informed at this time that it was a temporary lay-off and that his contract was “rolled over”. The Complainant worked with the Respondent fulltime until the 24/1/2020 when he was again placed on a temporary layoff. This was confirmed by the Respondent in a letter dated 27/1/2020. The Complainant received his last payment on the 31/1/2020.

In March 2020 the lockdown period commenced, and a letter dated 19/3/2020 was sent to all employees, including the Complainant stating that due to the current crisis caused by Covid-19 that the Respondent “may have no choice but to temporarily lay-off some employees either over a staggered period or all employees at one time”.

It was submitted that the Complainant later became aware that other employees had returned to full-time work with the Respondent following the end of the lockdown period. It was further submitted that the Complainant was not contacted by the Respondent to re-commence work. The Complainant made enquiries and subsequently submitted a form RP77 dated the 17/12/2020 to the Respondent who acknowledged receipt by letter of the 17/12/2020.

Further to this letter it was stated that no notice offering the provision of 13 weeks work was sent to the Complainant within 4 weeks of the receipt of the form. By letter of the 4/01/2021, the Respondent informed the Complainant that his employment had ceased as of the 31/01/2020. This letter recognised two periods of employment of the Complainant, the first being the 2/9/2017 – 15/12/2017 and the second period from the 4/5/2018 – 31/1/2020.  The Complainant submitted that he did not understand why he was left on lay-off.

Counsel for the Complainant submitted that the Complainant was employed from the 2/9/2017 to the 31/1/2020. It was further contended that the Complainant’s continuous service was not broken by the temporary lay-off during the first period of employment.

By way of letter dated the 19/2/2021 the Complainant’s solicitor wrote to the Respondent seeking confirmation of whether the Complainant’s hours were to be restored. The Respondent never replied to this letter.    

The Respondent acknowledged receipt of the complaint form lodged with the WRC on the 22/6/2021 by way of letter dated 12/7/2021 and asserted that the Complainant was employed by the Respondent from the period of the 4/5/2018 to the 31/1/2020. This letter contained no acknowledgement of the previous period of employment from the 2/9/2017 to the 15/12/2017. It was submitted on behalf of the Complainant in their submission that by virtue of this letter that the Respondent is denying that the Complainant qualifies for a statutory redundancy payment as he does not have 104 weeks of continuous employment.

Counsel for the Complainant submitted that a genuine redundancy situation existed, and that the Complainant is therefore entitled to a redundancy payment pursuant to the provisions of the Act.  It was further submitted that according to Section 7(2) of the 1967 Act, a redundancy situation occurs where there is a dismissal of an employee by an employer which ‘wholly or mainly’ results from one of the following situations as listed at Section 7(2) and accordingly, the Complainant relies upon Section 7 (2)(c) of the Act as a result of the Covid -19 pandemic.

It was contended by Counsel for the Complainant that according to Section 10 of the Redundancy Payments Act 1971, where an individual satisfies any of the requirements as listed at Section 7(2), redundancy is presumed unless the employer proves otherwise, based on a statutory presumption set out at Section 10(b) of the Redundancy Payments Act 1971. It was submitted in the Complainant’s written submission that in the absence of any notification, selection process, discussion, consultation, redundancy process or notice period by the Respondent, the Complainant understands that he was dismissed pursuant to Section 7(2)(c) of the 1967 Act as a result of the Covid-19 pandemic.

At the hearing it was submitted by Counsel for the Complainant that the Complainant’s dismissal by the Respondent could be inferred from the circumstances of the case, namely that no work was provided to the Complainant, he was aware that other employees were taken back and from the lack of communication from the Respondent when queried by the Complainant on whether his hours would be restored.  

It was further stated at the hearing by Counsel for the Complainant that the date of dismissal has changed considering the evidence of the Respondent. It was submitted that the Complainant first understood the date of dismissal as the 31/1/2020 which was set out in the Respondent’s letter of the 4/1/2021. However, this date has changed in light of the evidence of Mr. Bart O’Halloran, and the dates of the 17/12/2020 when the Complainant hand delivered the RP77 form and the 19/2/2020 when the Respondent received a letter from the Complainant’s solicitor seeking clarification regarding restoring his hours and another letter advising that that the Complainant was instituting two personal injury claims against the Respondent were put forward in evidence as alternative termination dates.

It was contended that continuous service is calculated by reference to Section 5(a)(ii) of the First Schedule to the Minimum Notice and Terms of Employment Act 1973, as amended and that a lay-off does not amount to a termination by an employer of an employee’s service. It was further submitted that if an employee is absent for not more than 26 weeks between consecutive periods of employment because of a lay-off, such period shall count as a period of service. Therefore, it was submitted that the period of temporary lay-off between the 15/12/2017 and the 5/5/2018 comprises a period of 20 weeks. Therefore, it was contended that the Complainant’s employment was continuous throughout this period and that the Complainant has been employed for a period greater than 104 weeks.

The Complainant sought a statutory redundancy payment based on a gross salary figure of €507.00 per week and for the purposes of calculation of reckonable service the provisions of Section 8(c) of Schedule 3 of the Acts should be applied, in order to calculate the correct amount  of a statutory redundancy payment.

Evidence of the Complainant, Gerard O’Brien

Mr. Gerard O’Brien gave sworn evidence that he was employed as a general operative by the Respondent company. He commenced employment on the 2/9/2017. He was not provided with a contract of employment. His work involved general labouring including the cleaning out of houses and other work. His hours of work were from 9.00 am until 4.30 pm and 9.00 am until 3.30 pm on a Friday, in total he worked 39 hours a week. He was paid weekly. At the adjudication hearing the Complainant produced a payslip as evidence of his weekly wage.

The Complainant said that in December 2017 work went quiet, and he was placed on a temporary lay-off by Mr. Bart O’Halloran. He was told at the time it was only temporary and that as soon as the Respondent had work that he would be brought back. He was first told that he would be brought back on the 4/1/2018 but this didn’t happen as the Respondent had lost out on two contracts.

He was contacted by an employee of the Respondent and asked if he wanted to come back to work. He returned on the 4/5/2018 to the same role and on the same pay of €13 per hour. He spoke with Jennifer McNamara of the payroll department, during the lay-off period and she told him that his contract would be “rolled over”. 

The Complainant understood that during this period his employment was not terminated, but that he had been placed on a temporary lay-off and would be brought back as soon as possible. He stated that he was brought back to work on the 4/5/2018.

In January 2020 he received an email from the Respondent advising that “Due to a downturn and the fact that we are waiting to get jobs in, we may have no choice but to leave some employees go and/or reduce some to a 3 day week  …. Please note all employees are on notice from the 16th January 2020”. The Complainant stated in evidence that in the last week in January 2020 he was told by his manager that his job was gone and when he enquired further, he was told he was on a temporary lay-off.

He received a letter from Jennifer McNamara dated 27/1/2020 stating “This is to certify that the above-named person has been put on a temporary lay-off from 24th January 2020”. Following this letter, he had no contact from the Respondent from the end of January 2020 onwards. The Complainant stated that he rang the Respondent company several times and spoke with Ms. McNamara who advised him that he would be going back to work when work was available.

The Complainant stated when he heard nothing back from the Respondent, he handed in a form RP77. When he did not receive a reply to this form, he contacted his solicitor for him to clarify his position with the Respondent as to whether he was still on temporary lay-off, or whether his employment was terminated, or whether his hours would be restored. He stated that he wanted to know where he stood.

Further to this contact, his solicitor sent a letter dated 19/2/2021 to the Respondent company. The Complainant stated that he wanted his job back and wanted to know where he stood. He further stated that his solicitor did not receive a response to this letter. The Complainant stated that in view of the lack of communication from the Respondent he did not know whether he was on temporary lay-off or whether his employment had been terminated.

The Complainant denied in evidence that he ever stated that he wished to resign as set in the letter dated 10/8/2022 from the Respondent to the Complainant’s solicitors which stated “He later came to the office window and stated to us that he did not want to come back to work for Speedline Engineering Ltd. As far as we are concerned, Mr. O’Brien terminated his employment”. 

There were no questions by way of cross examination from the Respondent.

I asked the Complainant what his understanding was of his employment situation, and he responded that “I understood I was on temporary lay-off all the time”. In reply to further questions, the Complainant stated that when his solicitor wrote to the Respondent on the 19/2/2021 he was seeking to have his hours restored. The Complainant confirmed that he didn’t receive any communication from the Respondent at any time and he confirmed that he was never advised that his position was made redundant. 

The Respondent did not provide a written submission at the hearing of this case, various documents were submitted prior to the hearing. Mr. Bart O’Halloran on behalf of the Respondent gave evidence in regard to the claim and set out the Respondent’s defence in this case.

It was submitted by Mr. O’Halloran that the Complainant’s first period of employment was terminated on the 15/12/2017. He disputed the fact that the Complainant was placed on a temporary lay-off until the 4/5/2018 as contended for by the Complainant. He stated that the Complainant was re-employed on 4/5/2018.

He further submitted that the Complainant was placed on a temporary lay-off on the 24/1/2020. Following a total lockdown which lasted 6 months the company returned on the 10/9/2020 but it was not a “full return” at this date. Mr. Bart O’Halloran and Ms. Jennifer McNamara returned to the company in August 2020 and after the 10/9/2020 it was an incremental return for staff. He stated that the company employed 35 staff in total and that from the 10/9/2020 that various staff members returned in “dribs and drabs”.

Mr. O’Halloran confirmed that the Respondent received a RP77 form from the Complainant on the 17/12/2020. His understanding of receiving that form was that the Complainant no longer wanted to work for the company and had resigned.

Mr. O’Halloran stated that the Complainant is not entitled to statutory redundancy payment as he does not have the requisite two years continuous service to qualify for a statutory redundancy payment as he started with the company on the 4/5/2018 and worked with them up to the 24/1/2020 when he was placed on temporary layoff.

He further submitted that once he received the RP77 form on the 17/12/2020 and the letter from the Complainant’s solicitor dated 19/2/2020 and two forms regarding two personal injury claims that the Complainant was taking against the company that he understood this to mean that the Complainant had resigned.

Mr O’ Halloran confirmed that he had no communication with the Complainant and that he never contacted the Complainant either after the 17/12/2020 or 19/2/2020 to check whether he had a correct understanding of his position as he was too busy trying to keep his company going in very difficult trading conditions during the Covid-19 pandemic. 

In his summation of the case Mr O’Halloran stated that “I didn’t communicate properly” with the Complainant.

Evidence of Mr. Bart O’Halloran Managing Director, on behalf of the Respondent Company

Mr. O’Halloran gave evidence that the Complainant was employed as a general operative.  He confirmed that the Complainant was not provided with a contract of employment but stated that the company has an employee booklet with various procedures. 

He stated that in December 2017 as there was no work for the Complainant his employment was terminated. The Complainant was taken off the payroll. He stated that he was re-employed in the same role on the 4/5/2018.

All employees got a letter dated 16/1/2020 putting them on notice of a lay-off. The next communication from the company was a letter dated 27/1/2020 from Ms. McNamara to the Complainant advising him that he was placed on a temporary lay-off from the 24/1/2020.

Mr. O’Halloran stated in evidence that he understood that he was leaving staff go for a maximum period of 3 months and after that either their jobs would be terminated, or they would be taken back. They were due to come back in March/ April 2020. However, due to the Covid lockdown in March 2020 everything was put on hold pending the Government decisions with respect to the public health restrictions.

He further stated that there were a skeleton staff of 4/5 employees working for a few weeks at a time, to do emergency work out of a total staff of 35. He stated that the Complainant’s manager was not working as he was placed on temporary lay-off and that Ms. McNamara was working remotely.

Mr. O’Halloran stated that on the 17/12/2020 the Complainant came to the window of the company office and handed in a RP77 form and spoke with Ms. McNamara. Mr. O’Halloran stated when he received this form, he understood that the Complainant did not want to work with the company anymore. However, he did not contact the Complainant, at this time to check whether his understanding was correct.

He stated that it was his intention to bring the Complainant back to work. He asked Ms. McNamara to check the calculations to see whether the Complainant was entitled to a redundancy payment using the 4/5/2018 as his start date. He was advised that the Complainant didn’t have the two years’ service to entitle him to a statutory redundancy payment.

Mr. O’Halloran stated in evidence that after he received the letter dated 19/2/2021 from the Complainant’s solicitor and after he received a letter stating that the Complainant was taking two personal injury claims against the Respondent that his understanding was that the Complainant had terminated his employment with the Respondent.

In relation to the reference in his letter dated 10/8/2022 to the fact that the Complainant had stated he did not want to come back to the company, Mr. O’Halloran stated that he could not recall any details of when this happened and who said this to him. 

Mr. O’Halloran stated in evidence that the Respondent returned from lockdown on the 10/09/2020 and the last remaining employees were brought back. He stated that officially the company was back but not all employees were taken back as there was not enough work. Regarding taking the Complainant back at this time Mr. O’Halloran stated that there wasn’t enough work for him to take him back.

Mr. O’Halloran stated that when he received the letter from the Complainant’s solicitor stating that he was taking two personal injury claims against the Respondent that was evidence for him that the Complainant did not want to work for him, and this constituted an act of “revenge because he didn’t get his redundancy”.

Cross Examination of Mr Bart O’Halloran,

Counsel for the Complainant put it to Mr O’Halloran that during the first period of lay-off in December 2017 that the Complainant’s contract was not permanently terminated as he never got a P45 or any paperwork stating that the contract was terminated. Mr O’Halloran in reply disputed this and stated that the contract was permanently terminated. 

Counsel for the Complainant stated that there were essentially two disputes at the centre of this case. The first dispute concerns whether the Complainant’s service can be considered as continuous as the Complainant contends that from December 2017- May 2018 this period was a layoff. The second dispute concerns the purported termination date of the Complainant’s contract.

Counsel for the Complainant put it to Mr O’Halloran that he had provided conflicting evidence on the basis that he had stated that at the return from lockdown on the 10/9/2020 that the last person was brought back and yet he had stated that the Complainant was not brought back. 

In relation to the alleged dismissal of the Complainant under cross examination he stated that he had every intention of bringing the Complainant back to work but that he didn’t have any work for him. He further stated that the Complainant would have known that he would be let go by sending in the form on the 17/12/2020 and other personal injury forms later in February 2021. He stated that he never told him he was dismissed and when asked how the Complainant would have known he was dismissed he stated that “he was supposed to know from the man on the street”.

Mr O’ Halloran stated in reply to a question from Counsel regarding the reference in his letter dated 10/8/2022 that the Complainant had come to the office and had allegedly stated at the office window that he did not want to return to work, that he could not recall who had said this to him.

In cross examination Mr O’Halloran stated that he did dismiss the Complainant as he did not have enough work for him, but he didn’t tell him that. 

Mr. O’Halloran further stated that he had no communication with the Complainant regarding the alleged termination of his contract either verbally or in writing.

Evidence of Ms. Jennifer McNamara, Payroll Officer / Administrator,

Ms. McNamara stated that she did not recall sending the Complainant a P45 in December 2017. She stated that her understanding was that his employment was terminated. The Complainant was brought back in May 2018 to the same role.

Ms. McNamara stated that she sent a memo out on the 16/1/2020 which was exhibited in the Respondent’s documents by email. She further stated that she sent a letter to the Complainant dated 27/1/2020 advising him that he was placed on a temporary lay-off from the 24/1/2020. She further stated that employees were paid weekly in arrears and that the Complainant was paid up until the 31/1/2020.

Ms. McNamara stated that she received from the Complainant a RP77 form which he handed in at the window to the company’s office. She stated that the RP77 was the only form she received from the Complainant.

Cross Examination of Ms. McNamara,

In reply to a question from Counsel for the Complainant, Ms. McNamara stated that she could not confirm whether she sent a P45 or any other paperwork to the Complainant from December 2017 until May 2018.

The Relevant Law: -

Section 7 of the Redundancy Payments Act 1967 provides in the relevant part as follows:-

7. General right to redundancy payment

(1) 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 the 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 the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, 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 henceforward 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.]………

(5) In this section “requisite period” means a period of [104] weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

To rely on Section 7 (2)(c) as the Complainant asserts, the Complainant must prove that a dismissal took place which is “wholly or mainly” attributable to a redundancy situation as set out thereunder.

Section 9 of the Redundancy Payment Acts 1967 provides for the definition of dismissal for the purposes of Section 7(1) grounding the right to a redundancy payment.

Section 9 in the relevant part provides: - 

9. Dismissal by employer

(1) For the purposes of this Part 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, or

[(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or]

(c) the employee terminates the contract under which he is employed by the employer [ … ] in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

To rely on the general right to a redundancy payment in Section 7, Section 7(1)(a) must be satisfied as to the requisite period of continuous service.

Section 10 of the Redundancy Payment Act 1971 provides;- 

10. Presumptions by Tribunal

For the purposes of a reference to the [Director General of the Workplace Relations Commission]—

(a) a person's employment during any period shall, unless the contrary is proved, be presumed to have been continuous;

(b) an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy;

(c) the [Director General of the Workplace Relations Commission] shall, after consultation with any person or body charged by statute with the fixing or determination or minimum wages or rates of pay, or the registration of employment agreements under the Industrial Relations [Acts 1946-2015] [or the national minimum hourly rate of pay declared by order under the National Minimum Wage [Acts 2000 and 2015], have regard to any such minimum as is appropriate or relevant.

Schedule 3 of the Act clarifies the matter of continuous employment.

Application of the law to the facts

In order for the Complainant to rely on Section 7(2)(c) of the Acts, a key question to be determined in this case is whether a “dismissal” within the meaning of Section 9(1) as set out above, has occurred.

The Complainant relies on two scenarios regarding his alleged dismissal by the Respondent. Firstly, as set out in their written submission, the purported termination date is identified as the 31/1/2020, based upon the letter furnished by the Respondent dated 4/01/2021 where Mr. O’Halloran in a letter to the Complainant referenced his second period of employment as “2nd Period 4th May 2018 – 31st January 2020”.

Secondly, it was further submitted by Counsel that the Complainant is entitled to infer that he was dismissed from the circumstances of the case, namely by virtue of the absence of any communication from the Respondent to clarify the position of whether the Complainant’s contract of employment was terminated or whether he remained on lay-off. It was further stated that, considering the evidence of Mr. O’Halloran, the date of termination had changed in evidence from the 31/1/2020 to the 17/12/2020 when the RP77 form was handed in by Complainant.

Counsel concluded that the Complainant was entitled to infer that he was dismissed by reason of redundancy by the 17/12/2020 as there was no work for him. Relying upon the lack of communication from the Respondent, the Complainant had no other choice but to infer his dismissal. In this regard the Complainant relies upon Section 10(b) which creates a statutory presumption in favour of redundancy.  

The Respondent company disputes that the Complainant has an entitlement to a statutory redundancy payment, on the basis that as the Complainant’s employment started on the 4/5/2018 therefore, he does not have the requisite 104 weeks of continuous service as required under Section 7 (1) of the Act.  

Prior to determining this issue, firstly I must determine whether the Complainant was dismissed as defined by Section 9(1). 

I find that the evidence of Mr. O’Halloran in respect to the purported termination of the Complainant’s employment contract to be inconsistent and conflicting at times.  He provided in evidence four different scenarios of how the Complainant’s contract of employment was allegedly terminated. Firstly, he stated that by the Complainant handing in a form RP77 on the 17/12/2020 he understood him to have terminated his own employment. He also stated when the Complainant’s solicitor sent the correspondence dated 19/2/2020 that he understood this to mean that the Complainant had resigned. 

He further stated in a letter dated the 10/8/2022 that the Complainant came to the “office window and stated to us that he did not want to come back to work for Speedline Engineering Ltd. As far as we are concerned, Mr O’Brien terminated his employment”.  He further stated that he did dismiss the Complainant as he did not have enough work for him, but he never communicated that to him, and he was supposed to know “from the man on the street”.

It is not disputed that Mr. O’Halloran did not communicate with the Complainant at any stage after the 31/1/2020 either verbally or in writing regarding the position of his employment contract apart from the letter sent by him to his solicitor dated 10/8/2022 after the complaint form had been lodged with the WRC. 

It is accepted that the Complainant did not receive any communication from Mr. O’Halloran after 17/12/2020 or 19/2/2020 to check whether his understanding that the Complainant had resigned was correct. I accept the Complainant’s evidence when he stated he never offered his resignation to Mr. O’Halloran at any time or as allegedly set out in his letter dated 10/8/2022. 

In terms of the statutory definition of dismissal, Section 9(1)(c) provides for a scenario where an employee resigns due to the conduct of the employer. I am satisfied that Section 9(1)(c) does not apply to the facts of this case based on the clear evidence of the Complainant that he did not resign from his employment or offer his resignation to the Respondent.

In this regard I refer to Ryan Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.25 relying on the UK case of Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156 where he states in relation to a doubt as to a resignation by an employee “The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

Therefore, I am required to determine whether based on the facts of this case the Complainant was dismissed pursuant to Section 9(1)(a) which states that “…. the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, “.

I find that the purported date of termination of the 31/1/2020 relied upon by the Complainant based on the letter furnished by the Respondent dated 4/01/2021 where Mr. O’Halloran referenced his second period of employment as “2nd Period 4th May 2018 – 31st January 2020” does not constitute evidence of a termination of his employment for the purposes of Section 9(1).  This letter was furnished to the Complainant on the 4/1/2021 in response to the Complainant handing in his RP77 form to confirm dates of employment and does not refer to the termination of the Complainant’s employment contract.

Furthermore, the Complainant asserts that he did not understand that the first period end date as set out in the letter of the 4/01/2021 as a termination date, therefore I find it implausible to assert that he understood from this letter that the second period end date was a termination date. In addition, it was not communicated to the Complainant that his employment was terminated at this time, on the contrary, the correspondence from Ms. McNamara dated 27/01/2020 demonstrates that he was placed on a temporary lay-off. 

The Complainant submits that he was entitled to infer that he was dismissed by reason of redundancy by the 17/12/2020 from the circumstances of this case, namely, that no work had been provided to him yet other employees had been called back to work, and by virtue of the absence of any communication from the Respondent to clarify whether he would be reengaged.

In this regard,  I refer to Ryan Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.13 in respect to circumstances where doubt as to dismissal arises, who states “In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended.”

Furthermore, as confirmed 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.” 

In the absence of any written or oral communication from the Respondent to convey its intention to terminate the Complainant’s employment contract I am satisfied that it was not reasonable for the Complainant to infer from the circumstances of the case, that he had been dismissed.

I find that the Complainant has not had his contract of employment terminated as provided for under Section 9(1) of the Redundancy Payment Acts 1967. Accordingly, the Complainant remains employed by the Respondent and on lay-off.

I am satisfied, given that the Complainant has not been the subject of a dismissal by the Respondent that Section 7(2)(c) is not applicable to this case. Therefore, I determine that the Complainant is not entitled to a statutory redundancy payment.  

Having carefully considered the parties submissions and all the evidence presented at the hearing of this case, for the reasons set out above, I disallow the Complainant’s appeal.

Redundancy – No dismissal- layoff -