Complainant

Respondent

Parties

Birute  Rimiene

 Confidental Dental Clinic Ltd.

Representatives

  In person

 Principal Dentist

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-00047165-001

14/11/2021

The complainant was employed by the respondent as a Dental Nurse from 2nd September 2013. The complainant was placed on covid related temporary layoff on 13th March 2020 and remained on lay off until she sought her redundancy entitlements by submitting an RP9 to the respondent on 29th October 2021.

The complainant gave evidence on affirmation at the adjudication hearing. The complainant’s evidence was that she was placed on temporary layoff from 13th March 2020 as a result of the temporary closure of the dental practice amid the covid 19 restrictions in place at the time. The complainant stated that although her employer reopened the dental practice on a reduced level of service in May 2020, she was unable to return to work as the Creche she used did not reopen at that time. The complainant stated that she sought several updates from the respondent in relation to her return to work but remained on temporary layoff as the respondent had stated he did not have any work available for her. The complainant stated that she notified the respondent that she was taking up a part time position on or about 7th September 2021 while on temporary layoff as she was aware that she could do this without affecting her redundancy entitlements. The complainant stated that she did not resign from her employment and subsequently sought her redundancy entitlements by submitting the RP9 to the respondent on 29th October 2021.

A Principal of the respondent also gave evidence on affirmation at the adjudication hearing. The respondent’s evidence was that the complainant resigned from her employment on or about 7th September 2021 having been on temporary lay off since 13th March 2020 during the covid 19 restrictions. The respondent stated that many employees returned to work on or about 18th May 2020 on a reduced working week but that the complainant was not available and remained on temporary lay off in circumstances where the Creche she used did not reopen at that time.

The respondent stated that it provided regular updates to the complainant in relation to her temporary layoff and the continuation of same due to the reduced level of service the dental practice was providing. The respondent stated that the complainant sought a reference on 10th August 2021 and subsequently resigned from her employment to take up another role. The respondent stated that it accepted the complainant’s resignation and wished her well in her new employment. The respondent’s position is that as the complainant resigned, her claim for redundancy is without merit and should fail.

The within complaint concerns the complainant’s assertion that she is due a redundancy lump sum payment following a period of temporary lay off from March 2020 until she submitted an RP9 to the respondent on or about 29th October 2021. The parties are in dispute in relation to the manner in which the employment ended. The respondent contends that the complainant resigned to take up a new position elsewhere and the complainant contends that the employment ended by reason of redundancy.

The Applicable Law

Section 12 Redundancy Payments Act, 1967 states as follows:

12(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Section 12 of the Redundancy Payments Act, 1967 was suspended with effect from 13th March 2020 during the Covid 19 pandemic and remained suspended until 30th September 2021. The complainant sought her redundancy entitlements after this period of suspension had ended and following a period of almost 18 months on temporary lay-off.

Periods of lay- off

In respect of redundancy entitlements, periods of lay-off within three years of an employment ending are non-reckonable. The Redundancy Payments (Amendment) Act 2022 addresses this issue, providing for a special payment to cover the loss to a redundancy lump sum because of pandemic-related lay-off. A decision regarding the complainant’s entitlement to the special payment is outside the scope of this adjudication and one to be addressed via the means prescribed by the Redundancy Payments (Amendment) Act 2022.

Conclusions

In my view the complainant gave clear and honest evidence at the adjudication hearing. In her message to the respondent on 7th September 2021, she outlines that she is taking up another employment in circumstances where she has been on temporary lay-off for approximately 18 months. Her message does not mention resignation. The respondent replies accepting her resignation and wishing the complainant well for the future. The complainant stated that she did not reply in relation to the resignation, but this was on the basis that she had not resigned and was aware that she could take up employment elsewhere during periods of lay-off without affecting her redundancy entitlements. The complainant subsequently sent an RP9 to the respondent dated 29th October 2021 seeking her redundancy entitlements.

The respondent’s position was that as the complainant had resigned, and had started work elsewhere, there was no merit in the claim and the RP9 was returned to the complainant.

Having considered the evidence of both parties, I find that following the 18 months of temporary layoff and in circumstances where the complainant had not resigned, her employment ended by reason of redundancy one week after she served the RP9 on the employer.

Having considered the submissions and evidence of both parties, I find that the complaint is well founded. The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment: 2nd September 2013

Date of commencement of covid related lay-off: 13th March 2020

Period of covid related lay-off: 13th March 2020 - 5th October 2021

Employment termination date: 5th November 2021

Gross weekly rate of pay: €315.00

The entitlement to a redundancy payment is based on having been in insurable employment within the meaning of the Social Welfare Acts for the period in question.

Covid Lay-off, redundancy entitlements