Complainant

Respondent

Parties

Theresa  Kelleher

Handlebars B and B (amended on consent at hearing)

Representatives

 Appeared In Person  

 Liam Cronin

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-00049241-001

18/03/2022

On 18 March 2022, the Complainant and lay litigant, submitted a claim that she had not received a redundancy payment on the conclusion of employment in her role as Receptionist at the Respondent B and B.

The Respondent denied offering a redundancy payment and confirmed that the complainants job remained open to her in the aftermath of the covid 19 pandemic.

Both parties attended the hearing and represented their respective positions.

Both Parties took at the oath at hearing.

I believed I needed more clarity on the complainant’s interface with DSP regarding either covid support payments or the state pension. I requested whatever records she could secure in that regard. These were received by the WRC and shared with the Respondent for comment, but no comment was forthcoming after a 6-week period.

The Complainant introduced herself as a lay litigant and a long-term employee across a number of roles at the Respondent hospitality business.

She outlined that she commenced work on 5 April 2005 and her employment formally ended on 22 December 2021. Her weekly wage was €90.00 for a 9-hour week.

The Complainant submitted her complaint form in pursuance of a lump sum redundancy payment following a declaration of redundancy by her employer on 22 December 2021. She had been on long term absence from the business due to covid restrictions.

On that day, in the company of a colleague, she had learned that the business was winding down and both she and her colleague were being made redundant. She submitted that she had been shown an online redundancy calculator, which had incorrectly recorded her tenure at the business as:

Employment Start Date: 5 April 2005

Date of Notice of Termination: 15 December 2020

Employment end date: 31 December 2020

She surrendered the business keys as she understood that she was no longer needed.

The Complainant brought the matter of a shortfall in tenure to the respondent’s attention on the following day, only for him to dispute the tenure claimed.

The Complainant contacted Revenue who confirmed her as still being on the company books. The Complainant informed Revenue she was being made redundant. The Complainants husband was ill at this time.

The Complainant took advice and submitted an RP 77 claim for redundancy with the correct dates incorporated on 9 February 2022. She sought to reconcile the figure quoted to include the year of covid.

“ …. Your job within Handlebars is still available and now that Covid 19 restrictions have been lifted as of Friday the 28 February, we expect you to return to your normal duties … “

On 24 February 2022, the complainant was invited back to work with the Respondent. She did not respond to the request to contact the Respondent. The letter did not have a letterhead attached.

The Complainant exhibited the letter signed by one of the proprietors.

 Ms Kelleher outlined that she had worked continuously at the respondent business as breakfast cook, housekeeping, reception, and domestic work.

The Complainant submitted that she had been off work since August 2020 due to covid restrictions. She had not found new work and had been in receipt of her state pension and covid support payment. The complainant said that she had been signed off by her Dr. The Respondent disputed any knowledge of this.

The Respondent did not avail of the opportunity to cross examine the complainant. The Complainant concluded that her name had been detailed on the offer made and she had been instructed to “take it away “She was informed that she was no longer required and contended that she had been dismissed on that date.

The Respondent presented to hearing and denied the claim.

He gave evidence under oath and explained that the covid pandemic had been a difficult time at the business as it was deemed an emergency accommodation for a public body. He ran the business himself as staff were out of the business during lockdown, in receipt of covid support payments.

Mr Cronin confirmed that had held a meeting with two members of staff, including the complainant on 22 December 2021.  in response to their querying their positions. He undertook to contact his Accountant.

  He gave both employees a draft proposal of Redundancy Calculator Results individualised to each employee and told them “To take it away, that it was there if you want it “

He submitted that the complainant returned after 2 hrs and told him that the calculation was in error by one year. The other employee accepted the redundancy as set out to her.

He acknowledged that the complainant had disputed the figures and in the interim, he had decided that she was not to be dismissed and her job was saved. The Complainant had not got back to him in the interim.

The Respondent denied telling the complainant that he was winding down the business. He confirmed that there was no contract of employment.

During cross examination, the respondent disputed being angry with the complainant on her follow up discussions on the disputed figures.

The Respondent concluded that the document presented to the complainant and her colleague were drafts constructed by the accountant. He acknowledged that the document did not state “proposed revisions “

I have been requested to reach a decision in the complainant claim for a lump sum redundancy payment from the Respondent.

This claim has been strongly contested by the Respondent, who maintained that the complainant was not dismissed, and her position remains open to her.

In reaching my decision, I have considered both parties oral submissions and evidence adduced. I have also considered the documentation relied on.

As the circumstances of this claim arose during the event now known as the Covid 19 pandemic and it co incided with the Complainant accessing her state pension. I sought as comprehensive a record as possible on the DSP payments received by her during this period.

As the dismissal relied on by the complainant was disputed by the Respondent, I wanted to understand as best possible, the sequencing of any payments made by either the respondent or the State.

The Complainant helpfully submitted a full record of DSP payments received by her from April 2020 to December 2021. These were shared with the Respondent but did not attract a comment.

Both parties in the case accept that the complainant was on lay off due to covid 19 from April 2020. Where they differ is on the status of the employment.

The Complainant submits that the employment ended as it did for her colleague on 22 December 2021 and she has been unfairly denied a redundancy lump sum payment for taking issue with the datelines of her employment for that purpose.

The Respondent described the meeting of December 2021 as addressing options through proposals but denied that redundancy was offered. Instead, he said that it was a draft proposal.

During clarifications, the Respondent acknowledged that there was no difference in the offer made to the complainant and her colleague outside of the amounts.

It is common case that the colleague, not present at hearing, was made redundant on 8 to 9 years’ service.

It may have assisted the parties to have had an in-time discussion following the release of the February 24, 2022, letter and prior to referral to the WRC on 18 March 2022.

The law on Redundancy is technical in nature. It is built on the foundations of two hallmarks, impersonality, and change.

An employee has a general, but qualified right to a redundancy payment.

General right to redundancy payment.

7.— (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, 1952 to 1966, 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.

As I have said, the covid 19 pandemic had a very defined impact on the workplace in Ireland, large groups of employees mobilised out of businesses from March 2020 onwards. Many departures were not accompanied by notification of lay off in employment terms. It was a time of emergency and that is reflected in the circumstances of this case.

This is a case which reflects an employment limbo situation.

The Complainant did not have a contract of employment and she was not provided with notification of lay off in accordance with section 11 of the Redundancy Payments Act, 1967.

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

Section 12 of the Act permitted an employee to trigger a claim for redundancy if placed on lay off for a defined period.

Right to redundancy payment by reason of lay-off or short-time.

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.

Emergency Legislation was passed on 13 March 2020, which amended the Redundancy Payments Act at Section 12 which curtailed an employee on lay off from seeking redundancy.

Operation of section 12 - emergency period

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

(2) Before the expiration of the emergency period, the Government may, at the request of the Minister made—

(a) after consultation with the Minister for Health,

(b) with the consent of the Minister for Public Expenditure and Reform, and

(c) having had regard to the matters referred to in subsection (3),

by order specify a date that is later than the expiration date of the emergency period specified in the definition of ‘emergency period’ or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to and including the date so specified.

This development did not prohibit redundancies initiated by an employer.

It is against that Legislative back drop, that I consider the parties reflections of the December 2021 meeting.

The Complainant was in receipt of a reduced PUP payment until December 2021. The Respondent agreed that the complainant was offered redundancy alongside her colleague, who accepted it.

There was no dispute around the keys being returned by the complainant. For me, this reflected a ceremonial aspect of conclusion of employment.

Section 9 defines dismissal in a redundancy situation.

. — (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 the 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.

I find that section 9(1) (a) of the Act applies to the circumstances in this case.

I am satisfied on the evidence adduced at hearing, that the Employer terminated the complainants’ employment without notice on 22 December 2021. He accepts that the same offer of redundancy was made to both employers but argued that the figures quoted were a draft version.

However, the sequence of events after this meeting are of note.

The complainants colleague accepted the first offer made and was made redundant.

The complainant queries the amount quoted as she felt that the 1.5 years on lay off ought to have been reckonable service.

The Respondent did not have a working knowledge of the Covid 19 related lay off payment scheme in respect of redundancies effected from 13 March 2020 and 31 January 2025.

This is a taxable award made by Government to balance against the extended time of lay off prior to redundancy for a certain cohort of workers. Application commences by the Respondent.

The nett point, I wish to make here is that the period of covid related lay off is not typically reckonable in a redundancy lump sum payment and this is a statutory compensatory measure for that fact.

As the parties disagreed on the composition of the lump sum payment, the complainant made a formal application on 9 February 2022. Two weeks later, the complainant was invited back to work within a defined date being mentioned.

I prefer the Complainants evidence over that of the Respondent on the offer made on December 22, 2021. I find that it was an offer of redundancy, which she accepted as manifested by the request to clarify the dateline. These were not tabled as draft proposals.

 I am strengthened in my view of that point when the disagreement between the parties was followed up with a formal application for a lump sum payment, albeit that the law was not with the complainant on that point, due to the amendment in section 12, as discussed.

I have decided that the complainant was dismissed through redundancy, however, I must now examine the Respondents counteroffer of employment to ascertain whether the redundancy stands or not.

The Redundancy Payments Act, 1967 is truly technical here.

First, I must examine the facts of the case as they may apply to Section 9(2) of the Act

9 (2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and—

(a) in a case where the provisions of the contract as renewed or of the new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract, or

(b) in any other case, the renewal or re-engagement is in pursuance of an offer in writing made by his employer before the ending of his employment under the previous contract and takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter.

The Complainant was not offered work either immediately on the ending of her employment on 22 December 2021 or within a period of four weeks thereafter.  The offer of employment was dated 24 February 2022.

Therefore, the Respondent cannot rely on the defence open to him in section 9(2)(a) or (b)

I must also consider which Section 15 of the Act has application to the facts of the case.

Disentitlement to redundancy payment for refusal to accept alternative employment.

15.— (1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract], and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

I have considered the application of section 15 to the facts of the case, and I cannot uphold a defence for the Respondent here.

I can accept that the complainant was offered a return to work “Your job in Handlebars is still available “on 24 February 2022, however that dateline defeats the clear parameters of the offer of suitable work.

15(1) (c) the renewal or re-engagement would take effect on or before the date of the termination of his contract,

And

15(2) (d) (d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract,

Having considered all the circumstances of the case, I find that the Complainant was made redundant in accordance with section 7(2) (c) of the Act, from her position at the Respondent business on December 22, 2021, and she is entitled to recover a lump sum payment as a result.

I find the claim for redundancy is well founded.

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.

I have found that the claim for a lump sum payment in Redundancy is well founded.

I order the Respondent to make a lump sum payment in redundancy on the following basis.

Date of commencement:  April 5, 2005

Date of Employment end:  December 22, 2021

Wage paid weekly:              €90.00                             

Breaks in service:   April 2020 – December 2021 (covid related and subject to the application of the national lay off payment in redundancy)

This order is made on the basis that the Complainant was in insurable employment.

Claim for Redundancy, disputed by the Respondent. Covid Pandemic