Complainant

Respondent

Parties

Johno  Crotty

Extreme Event Ireland Ltd

Representatives

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-00049730-001

17/04/2022

The complainant worked as an IT administrator with the respondent from October 2013.  He was laid off in March 2020 because of the Covid-19 pandemic.  At a meeting in June 2020, the complainant was asked to return to work on a reduced wage.  The complainant subsequently advised the respondent that he could not accept a reduced wage but would be happy to return to work on his normal terms and conditions.  The respondent’s managing director acknowledged the complainant’s position and wished the complainant well in the future.  He also requested the complainant meet to do a role handover.  The complainant’s claim is that he should have been paid a redundancy payment when he was let go in June 2020.  The respondent’s position is that the complainant resigned from employment on 29 June 2020, took up alternative employment and that his position with the respondent was not redundant. 

The question of how the complainant’s employment ceased is in dispute between the parties.

The complainant emailed the respondent on 14 December 2021 regarding his entitlement to a redundancy payment and referred his claim to the Workplace Relations Commission on 17 April 2022.  This was outside the 52-week time limit for making a claim, as set out in section 24(1) of the Redundancy Payments Act 1967.

All employees were put on temporary lay-off in March 2020 due to the Covid-19 pandemic. 

The complainant was asked to attend a meeting with the respondent’s HR manager and managing director on 16 June 2020.  At this meeting, the managing director told the complainant he didn’t want to lose him and would like him to return to work but that it would be on a reduced wage.  The complainant said he would have to think about it.  He advised the respondent on 29 June 2020 that he would not be able to return on the reduced wage offered but would be happy to return on his normal wages.  By email of the same date, the managing director acknowledged understanding of the complainant’s position and wished the complainant the best of luck in the future.  On 2 July 2020, the managing director emailed the complainant about doing a full handover report on the complainant’s role.  The complainant met with the managing director on 10 July 2020 to do the handover.  The complainant understood the respondent to have terminated the employment of many of its employees in or around this time and that a small number of people were asked to stay on.  The complainant further understood, from the managing director’s emails at the end of June and beginning of July 2020 wishing him the best of luck and arranging a hand-over of his role, that he was being let go by the respondent.

The complainant received the Pandemic Unemployment Payment (“PUP”) until he secured alternative employment in October 2020.  The complainant remains in that employment.

In relation to the delay in referring his claim to the Workplace Relations Commission, the complainant said that he thought at the time he was let go by the respondent that he could not get redundancy due to an embargo on redundancies as a result of the pandemic.    The complainant understood the position to be that there was no entitlement to redundancy where a person was let go during the pandemic because of there being no work.  The complainant submitted that it was after the embargo was lifted and he contacted the Workplace Relations Commission in October or November 2021, that he realised he should have been paid redundancy by the respondent at the time his employment was terminated.   The complainant submitted that the pandemic-related redundancy embargo was cause for him not having referred the claim for a redundancy payment and that an extension of the time limits is justified in the circumstances.  

The respondent’s business is entirely dependent on the tourism and hospitality sectors.  On 19 March 2020, the business closed due to Covid-19 restrictions and all employees were laid-off.  All employees were registered for PUP.  

The managing director outlined how he considered the complainant to hold a pivotal role in the business, overseeing all IT operations.  He was keen to retain the complainant in employment and asked him to the meeting on 16 June 2020 with a view to the complainant returning to work on a reduced wage and hours.  The managing director understood the rationale for the complainant’s response on 29 June 2020 turning down the offer of the reduced wage but there was nothing more he could do as it was all he could afford.  He took the complainant’s email refusing the offer as the complainant’s resignation from employment.  

The respondent received reference requests in respect of the complainant on 1 July 2020 and 29 September 2020.

The managing director was surprised to receive the complainant’s email in December 2021 regarding payment of redundancy. He responded to the complainant’s email offering the complainant a return to his position on the same terms and conditions he held prior to lay-off in March 2020.  The complainant was not replaced in employment; the managing director was undertaking the IT work.

The respondent submitted that the complainant resigned his position on 29 June 2020 and further that any claim is statute barred.

The complainant’s claim for a redundancy payment was received by the Workplace Relations Commission on 17 April 2022. 

Whilst there was a dispute between the parties as to how the complainant’s employment with the respondent ceased, based on the evidence before me, I am satisfied that his employment ended on 29 June 2020.

There are time limits on claims for redundancy payments and the relevant provisions in section 24 of the Redundancy Payments Act 1967 (the “1967 Act”) are as follows: -

“(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of the dismissal or the date of termination of employment –

(a)    the payment has been agreed and paid, or

(b)    the employee has made a claim for the payment by notice in writing given to the employer, or

(c)     a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

and

“(2A)  Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he or she is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

This claim was presented more than 52 weeks after the complainant’s employment ceased.  The 52-week time limit may be extended to 104 weeks where I am satisfied that there was reasonable cause for the complainant failing to make a claim within the 52-week period.

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 wherein the Court stated:-

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon amounts to reasonable cause for that delay.

The complainant submitted that the delay in referring his claim was on account of his understanding that there was a Covid-19 related embargo on redundancies at the material time.  He stated that it was only after the embargo was lifted and when he contacted the Workplace Relations Commission in October or November 2021, that he realised he should have received redundancy at the time his employment terminated.

Whilst the complainant has reasoned why he did not refer his claim within time, I cannot find that the reasons given explain and excuse the delay. 

It is apparent that the complainant was operating under a misapprehension that there was an embargo on redundancies and redundancy payments at the time his employment with the respondent ceased.  There was legislation introduced in 2020, namely the Emergency Measures in the Public Interest (Covid-19) Act 2020, which had the effect of suspending section 12 of the 1967 Act during the emergency period.  Section 12 of the 1967 Act concerns the right of an employee to give an employer notice of intention to claim redundancy payment in respect of lay-off or short-time.  The effect of the suspension meant that an employee, who was laid-off or put on short-time due to the effects of measures taken by an employer in order to comply with Government policy in respect of Covid-19, could not exercise the right under section 12 of the 1967 Act.  This did not impact upon an employee’s general right to a redundancy payment pursuant to sections 7 and 19 of the 1967 Act. 

The complainant said that it was on contacting the Workplace Relations Commission in October/November 2021, after his understanding that the embargo had been lifted, that he realised the respondent should have paid him redundancy at the time and was made aware of the time limits for claims under the 1967 Act. 

I note that it was open to the complainant to contact the Workplace Relations Commission at any time after the termination of his employment.  I further note that no explanation was offered as to the delay between contacting the Workplace Relations Commission in October/November 2021 and referring his claim in April 2022.  Whilst the complainant’s misapprehension about an embargo on redundancy may explain at least part of the delay, I cannot find that the misapprehension excuses the delay and the failure to observe a statutory time limit.

I find that this claim was referred outside of the time limit set out in section 24(1) of the 1967 Act and I am not satisfied that the failure to refer the claim within time was due to reasonable cause.

Accordingly, I find that I do not have jurisdiction to decide the claim under the 1967 Act.

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.

For the reasons set out above, I find that I do not have jurisdiction to decide the claim under the Act.  I therefore disallow the complainant’s appeal.

Claim for statutory redundancy payment – Time limits – Reasonable cause