Complainant

Respondent

Parties

Liam  McWey

Excel Electrical Donal Corcoran Electrical Ltd

Representatives

Connect Trade Union

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-00051764-001

20/07/2022

On the completion of his apprenticeship, the complainant was hired on a permanent contract with the respondent. The complainant was subsequently made redundant by the respondent and claims that he is entitled to a statutory redundancy payment. The respondent outlined that the period of apprenticeship and the new permanent contract of employment were two separate contracts of employment. The respondent contended that the complainant was not entitled to a statutory redundancy payment as the complainant did not have 104 weeks service under his new contract of employment.

The complainant was employed as an apprentice electrician with the respondent from 16 December 2016 until the completion of his apprenticeship on 29 July 2021. The complainant continued to work for the respondent on a permanent contract without a break in service until his position was made redundant on 5 November 2021. The complainant worked for the respondent for 13 weeks after the completion of his apprenticeship and therefore s 7(4) of the Redundancy Payment Act 1967 does not apply in this case. As there was no break in the complainant’s service, this allows his service during his apprenticeship to be included in the calculation of his statutory redundancy entitlement.

The complainant worked for a total of 4 years and 11 months with the respondent. The complainant was on temporary lay-off from 1 April 2020 to mid-May 2020 and again from 10 January 2021 to 1 May 2021. His total reckonable service for the purposes of calculating his statutory redundancy payment is 4 years and 5.5 months. As the complainant was not dismissed within one month of the completion of the apprenticeship, he is entitled to a statutory redundancy payment of €5,950. Connect Trade Union wrote to the company on 11 May 2022 on behalf of the complainant requesting a statutory redundancy payment. This was refused by the respondent.

The respondent outlined that the complainant was engaged on two separate and distinct contracts of employment. The first contract was a contract of apprenticeship which commenced on 15 June 2016 and terminated on 29 July 2021 when the period of apprenticeship was completed. The complainant was then given a new permanent contract of employment commencing on 2 August 2021. The respondent stated that the complainant was dismissed on 5 November 2021 due to a downturn in work. The respondent contended that the complainant did not have the requisite 104 weeks service under the second contract to qualify for a statutory redundancy payment. The respondent outlined that it is not the practice of the respondent to let employees go within one month of the completion of an apprenticeship as this would be unlawful. The respondent stated that the company is not refusing to pay a statutory redundancy payment and it has no difficulty doing so if it is a legal requirement. However, it is the respondent’s understanding that it is not obliged to pay a statutory redundancy payment given the facts of this case.

The Redundancy Payments Act 1967 (as amended) (“the 1967 Act”) sets out the general right to redundancy payment. Section 7(1) provides:

“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.”

Section 7(4) of the 1967 Act provides:

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

Section 7(5) of the 1967 Act provides:

“In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .”

Section 9(2)(a) of the 1967 Act provides:

“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 . . . . ”

Continuous and reckonable service is dealt with in Schedule 3 to the 1967 Act. In relation to continuous employment, the Schedule provides at 19(4): “Employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving the employment . . . . ”

In relation to reckonable service, Schedule 3 provides at 19(5): “Where an employee’s period of service has been interrupted by any one of the following—(a) any period by reason of— (ii) lay-off . . . continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given . . . (8) During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service— (c) absence by reason of lay-off by the employer.”

In this case the fact of redundancy is not in dispute. It is the complainant’s case that he is entitled to a statutory redundancy payment and is not precluded from claiming a statutory payment as per s 7(4) because he was not dismissed within one month of the end of the apprenticeship. Further, it is the complainant’s case that his service is continuous since the commencement of his apprenticeship with the respondent and accordingly, he has the requisite period of service as required under s 7(1) and s 7(5). The respondent contended that the complainant is not entitled to a statutory redundancy payment as he does not have the requisite period of service as the period of apprenticeship and the permanent contract were two distinct contracts and therefore the complainant’s service was not continuous.

As provided for under s 7(4) of the 1967 Act an apprentice who is dismissed within one month after the end of the apprenticeship is not entitled to a redundancy payment. It is common case that the complainant’s apprenticeship ended on 29 July 2021; that the complainant was offered a permanent contract commencing on 2 August 2021; and that he continued to work for the respondent on that permanent contract without a break in service until his position was made redundant on 5 November 2021. I find that the complainant was not dismissed within one month of the completion of the apprenticeship and therefore he is not precluded from claiming a statutory redundancy payment. Further, as per Schedule 3 of the 1967 Act, service is continuous unless broken by dismissal or resignation. Section 9(2)(a) of the 1967 Act provides that an employee shall not be taken 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. Therefore, I find that the complainant’s service is continuous from 15 June 2016 (the date stated in the Statement of Terms of Employment and confirmed by the respondent), and he is entitled to a statutory redundancy lump sum payment.

The following criteria apply:

Commencement date of employment: 15 June 2016

Gross weekly wage: €600 (as per the cap)

End date of employment: 5 November 2021

Periods of non-reckonable lay-off: 1 April 2020 to 16 May 2020 and 10 January 2021 to 1 May 2021

As noted above, periods of lay-off within three years of an employment ending are non-reckonable. The Redundancy Payments (Amendment) Act 2022 addresses this issue and provides 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.

CA-00051764-001

I decide that the complainant is entitled to a redundancy lump sum payment under the Redundancy Payments Act 1967, in accordance with the following criteria:

Employment start date: 15 June 2016

Employment end date: 5 November 2021

Gross weekly remuneration: €600 (as per the cap)

Periods of non-reckonable lay-off: 1 April 2020 to 16 May 2020 and 10 January 2021 to 1 May 2021

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Statutory redundancy payment.