Complainant

Respondent

Parties

Mr John Duggan

Celtic Bay Builders Ltd

Representatives

Self-Represented

 Did not attend

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-00050892-001

27/05/2022

The Complainant was employed as a Carpenter with the Respondent from the 26 March 2018, until 21 January 2022. There was a break in his service due to COVID-19 restrictions from 27 March 2020 to 18 May 2020 and the 31 December 2020 to 12 April 2021. The Complainant is seeking his redundancy entitlements under the Redundancy Payments Act, 1967, to the effect that the Complainant was made redundant and did not receive a statutory redundancy payment.

The Complainant gave evidence on Affirmation.

The Complainant advised the hearing that he was employed on a full time basis as a Carpenter with the Respondent Celtic Bay Builders LTD from the 26 March 2018, until 21 January 2022. The Complainant also submitted that he had a break in his service due to COVID-19 restrictions from 27 March 2020 to 18 May 2020 and the 31 December 2020 to 12 April 2021.

The Complainant submitted payslips at the hearing evidencing his normal weekly remuneration as €745.82. gross per week. The Respondent did not issue any contract of employment and the Complainant provided evidence of his employment with the Respondent at the hearing by presenting documentation issued by way of payslips he retrieved through his account with the Revenue Commissioners.

The Complainant submitted at the hearing that upon his return to work after the Christmas Holidays period, his employer informed him on the 10 January 2022 that the company was no longer trading, and he had no further work for him and he worked his last day with the employer on the 21 January 2022.

The Complainant further submitted at the hearing that he requested on several occasions for his statutory redundancy to be paid, and he has been advised on all occasions by his former employer that they have no funds to pay this.

The Complainant gave evidence at the hearing that he completed and served an RP77 form which he sent by way of email to the Respondent on 24 May 2022.The Complainant advised the hearing that the Respondent informed him in his response to his request by way of email also on the 24 May 2022 ‘that he had no funds to pay him his redundancy’.

The Complainant stated at the hearing that as he was not satisfied with the Respondents response, he lodged his complaint with the Workplace Relations Commission on the 27 May 2022.

The Respondent did not attend the hearing.

This complaint concerns payment of a statutory redundancy lump sum.

The entitlement to a redundancy payment is outlined in Section 7 of the Redundancy Payments Acts which states as follows:

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.

(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,

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees. ]

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(4A) In ascertaining, for the purposes of subsection (2) (c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer ‘ s family —

father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half brother, halfsister. ]

(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.

I accept the Complainants evidence that he was employed by the Respondent from 26 March 2018 and was laid off on 21 January 2022. Based on the documentation furnished at the hearing, I am also satisfied that the Complainant’s normal weekly remuneration was €745.82 gross per week.

The Complainant gave the Respondent notice in writing of his intention to claim redundancy on 24 May 2022.  The Complainant advised the hearing that the Respondent informed him in his response to his request by way of email also on the 24 May 2022 ‘that he had no funds to pay him his redundancy’. In the circumstances, the Complainant referred the within complaint to the Workplace Relations Commission on the 27 May 2022.

On the basis of the uncontested sworn Testimony of the Complainant and the payroll details submitted, both of which were questioned/examined closely by the Adjudication Officer, the decision has to be to award Statutory Redundancy  to the Complainant., I find that he was an employee of the Respondent and it is clear that his employment ceased in accordance with Section 7(2)(a) of the Acts with effect from 21 January 2022.

I am also satisfied that the Respondent had not paid any monies to the Complainant in respect of his redundancy at the time of the hearing on 16 December 2022.

Accordingly, I find that the Complainant was made redundant in January 2022 and is entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Act 1967 based on his service with the Respondent from 26th March 2018, until 21st January 2022 and noting his break in his service due to COVID-19 restrictions from 27 March 2020 to 18 May 2020 and the 31 December 2020 to 12 April 2021.

Complaint CA-00050892-001 is well founded.

I find that the Complainant was made redundant in January 2022 and that he is entitled to a lump-sum payment pursuant to the Redundancy Payments Act 1967 based on the following criteria:-

Date of Commencement of Employment:  26 March 2018

Date of Termination of Employment:  21 January 2022

Gross weekly wage based on recent payslips: €745.82.

and subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Claim for statutory redundancy payment – Section 39 Redundancy Payments Act 1967