RPD232

1.Appeal of Adjudication Officer Decision No(s)ADJ-00033512 CA-00044233-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 03 June 2022 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 9 March 2023. The following is the Determination of the Court:


DETERMINATION:

This matter comes before the Court as an appeal by Serdang Limited T/A Blarney Hotel and Golf Resort (the Respondent) against the decision of an Adjudication Officer in a complaint made by Pawel Sowinski (the Complainant) under the Redundancy Payments Acts, 1967 to 2022.

The Adjudication Officer found that the Complainant’s employment had been terminated by reason of redundancy within the meaning of the Act and found that he was entitled to receive a redundancy payment in accordance with the Act.

Background.

The Complainant was employed by the Respondent from 2006.

The Complainant ceased working for the Respondent in or about January 2017 and a medical certificate dated 26^thMay 2017 which stated that the Complainant would not be fit for work for an unspecified period but “no longer than 3 months” was provided to the Respondent at that time.

It is common case that the Complainant was dismissed by reason of redundancy within the meaning of the Act on 17^thApril 2020.

The within complaint was received by the Workplace Relations Commission on 19^thMay 2021.

The Respondent submitted that the within complaint was out of time having regard to the provisions of the Act.

Is the within complaint out of time?

The Respondent submitted that the within complaint was made out of time having regard to the provisions of the Act and is statute barred.

The Act at section 24 makes provision in relevant part as follows:

• 24.—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 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.

  (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 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.

• •A letter to the Complainant from the Respondent dated 31^stJanuary 2020 advising him that, whereas ‘normal winter closure’ had been in place since November 2019, a temporary cessation of all trading at the hotel due to ongoing operational uncertainty would take place as had been advised at a meeting of 16^thJanuary 2020. That letter advised the Complainant that he was to be laid off for a period of four weeks with effect from the date of the letter.
  • 
    The letter went on to advise the Complainant that he would not be paid during the period of lay-off and also provided him with guidance as regards certain rights and entitlements under law which might have relevance to him.
  
  •A letter from the Respondent to the Complainant dated 3^rdMarch 2020 advising him that, as advised by the Respondent at a meeting on 27^thFebruary 2020, the Respondent was undertaking a consultation process in line with its obligations under the ‘Protection of Employment Act 1977 – 2014’ regarding Collective Redundancies.
  • 
    The letter went on to confirm that the Complainant would continue on unpaid lay-off during the consultation period which the Respondent expected would take place until 26^thMarch 2020.
  
  •A letter dated 3^rdApril 2020 from the Respondent to the Complainant confirming to him that his role is confirmed as redundant. The letter confirmed that he was entitled to 2 weeks’ notice of redundancy and that the letter constituted written notice of the termination of his employment by reason of redundancy. The letter also advised the Complainant that the termination of his employment would take effect from 17^thApril 2020. He was advised that the Respondent did not have any other assignments or roles for him at that time.
  • 
    He was advised in that letter that he would, within 14 days of his termination date, receive payment in lieu of accrued but untaken holidays in the amount of €80.80 (gross). He was also advised in that letter that he could appeal the decision to terminate his employment by reason of redundancy within five days of his receipt of the Respondent’s letter.

The interpretation of the phrase ‘reasonable cause’was considered by this Court in its decision, albeit under a different enactment, in  Cementation Skanska (formerly Kvaerner Cementation) Limited v James Riordan DWT0343  where it 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 phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

In response to a question from the Court the Complainant confirmed that he had never advised the Respondent in writing of a change or changes of his address; albeit his representative, who had been a colleague in the employment of the Respondent, submitted that she had advised certain unnamed personnel of the Respondent that the Complainant had changed address.

The Respondent submitted that it could have done no more to notify the Complainant of the termination of his employment by reason of redundancy than it had done by issuing correspondence on 31^stJanuary 2020, 3^rdMarch 2020 and 3^rdApril 2020 and by sending such written notifications to the address which he had provided himself. Insofar as the Complainant did not receive any of that information, that reason for that was ‘very much at his door’.

The complaint is, according to the Respondent, statute barred and the limitation period for bringing a claim can only be extended in exceptional circumstances. The Respondent submitted that no such exceptional circumstances exist in this case.

The representative of the Respondent submitted that, should the notice periods set out in the Minimum Notice and Terms of Employment Act, 1973 apply to a redundancy within the meaning of the Act, the within complaint would also fail by reason of the Complainant’s failure to adhere to statutory time limits. The Court asked the Respondent’s representative to clarify whether he was submitting that the Court should import the terms of the 1973 Act into the Act and if so, whether he wished to address the Act at Section 17(1) or related regulations in the context of his submission or to otherwise place authorities or relevant statutory provisions before the Court. The Court reminded the representative that Section 17(1) of the Act provides as follows:

• 17.(1) An employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal.

The representative submitted in response that he had no submission to the effect that this Court was required to apply the provisions of the Act of 1973 to the facts of the within appeal but stated that he was concerned that the Court might do so.

Conclusion of the Court on this matter

The parties declined the opportunity, when invited by the Court to do so, to proffer testimony on any aspect of the matter of time limits arising under the Act and now before the Court on appeal.

The provisions of the statute are clear. The decision for the Court is not whether, as the Respondent submits, exceptional circumstances exist in the case which would allow an extension of time for the making of the within complaint, but rather it is for the Court to decide whether the failure by the Complainant to make the complaint within 12 months of the date of the termination of his employment was due to a reasonable cause. If the Court does so decide, it may declare the Complainant to be entitled to the lump sum and the Complainant shall thereupon become so entitled.

It is clear that the Respondent made every reasonable effort to properly notify the Complainant of the termination of his employment by reason of redundancy. The Court, particularly in the absence of evidence, does not accept that any purported notification by the Complainant’s representative before the Court to staff of the Respondent, of the Complainant’s change or changes of address between 2017 and 2020 can constitute a reasonable basis for the Complainant to contend that he did properly notify the Respondent of such address changes. In the view of the Court the Respondent is correct to assert that any impediment to the Complainant’s receipt of the notifications issued to him in writing by the Respondent was the sole responsibility of the Complainant.

Notwithstanding that conclusion however, the matter before the Court is not the apportionment of blame. It is rather to determine whether the Complainant has shown that his failure to make his complaint in time was due to reasonable cause. The Court, notwithstanding the absence of oral evidence being tendered by either party, concludes, on the balance of probability, that the Complainant was not aware of the fact or date of his redundancy until some considerable time after its occurrence.

The Complainant has submitted to the Court his originating complaint form which he submitted to the Workplace Relations Commission on 19^thMay 2021. That form contained certain details, but did not provide, as requested by the form, the date of the termination of the Complainant’s employment. The Complainant has in this appeal submitted that he did not know the date of termination of his employment until he attended the hearing of the Workplace Relations Commission which had been convened to deal with his complaint.

The Court, noting the parties written and oral submissions and in the absence of testimony, concludes that this account, on the balance of probability, is a credible outline of the underlying facts of the matter.

The Court notes that, whereas the Act at Section 24 permits an appeal made within 52 weeks of the termination of the employment, the Complainant’s delay in making the within complaint was of the order of five weeks approximately beyond the expiry of the 52-week period.

As set out above, this Court in  Cementation Skanska (formerly Kvaerner Cementation) Limited v James Riordan DWT0343, stated as follows when considering the length of delay:

• 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.

For completeness, the Court should address the brief submission of the representative of the Respondent made at the end of the hearing where he submitted that Complainant had made no application to the Court to extend time for the making of his complaint. The Court did not hear from the Complainant on this matter.

The Court notes that the Respondent, whose appeal it is that is before the Court in the within matter, identified in its submission that the issue of time limits was a matter to be decided by the Court. Consequently, the Court heard from both parties in that matter. The Act places no obligation upon the Complainant to make an application to the Court to extend time for the making of his complaint. The obligation under the Act is for the Court, when dealing with a submission from any party which puts the statutory time limits at issue, to determine whether any failure to make an appeal in the permissible time period was due to reasonable cause. The Court concludes that it is not a condition precedent for the Court to exercise its jurisdiction to determine a matter arising under Section 24 of the Act, that the Complainant make an application to the Court.

Summary submission of the Complainant on other matters

The Complainant submits that he is entitled to the lump sum payments provided for by the statute arising from the termination of his employment by reason of redundancy on 17^thApril 2020.

Summary submission of the Respondent on other matters.

The Respondent submitted that the Complainant’s employment terminated by reason of redundancy on 17^thApril 2020.

The Respondent also submitted that the right to receipt of a redundancy payment accrues only to an employee if he/she was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and that the Complainant did not meet that criterion. He had ceased to be an employed contributor in employment after January 2017 and was absent from his employment without contact and without explanation since late 2017.

The Court asked the representative of the Respondent, in aid of the Court and in the context of his submission as regards insurability of employment, to address section 39(15) of the Act which provides as follows:

• 15) Any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1) (e) or 38 (1) (f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may appeal to the Director General against the decision; provided however, that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts.

He submitted however that notwithstanding that the Respondent’s position is that the employment of the Complainant had been terminated by reason of redundancy on 17^thApril 2020, there was an onus on the Court to inquire into whether in fact the employment had terminated prior to that date. He submitted that he did not know if the employment had terminated prior to that date but that the Court is required to establish how the Complainant had sustained himself between 2017 and 2020 and whether he may, for example, have engaged in employment in Poland or availed himself of the support of the Polish Social Welfare system during that period. Such enquiries would allow the Court to determine whether the employment had terminated before 17^thApril 2020.

The Court asked the representative of the Respondent, against the background of (a) the Court’s jurisdiction under the Act and the matter for decision in consequence of that jurisdiction, and (b) the clear submission of both parties that the Complainant’s employment had terminated by reason of redundancy on 17^thApril 2020, if he could provide authority or detail of a statutory provision which would permit or require the Court to look behind the accepted fact of the occurrence of a redundancy within the meaning of the Act on 17^thApril 2020. The representative declined to proffer any such authority or to draw the Court’s attention to any relevant statutory provision.

The Court advised the representative of the Respondent that it was unacceptable in such circumstances to submit that a redundancy within the meaning of the Act had occurred on 17^thApril 2020 and at the same time to submit that the employment may have terminated earlier than that date. Such submissions were inconsistent and contradictory to an unacceptable degree.

The Court asked the representative of the Respondent, in aid of the Court, to answer two questions and he agreed to do so.

The Court first asked the representative whether the Complainant’s employment had terminated by reason of redundancy within the meaning of the Act on 17^thApril 2020. He submitted in response that it had so terminated.

The Court then asked the Respondent’s representative if he contended simultaneously that the employment may have terminated on a date earlier than 17^thApril 2020 and if he could provide the date of such termination. He submitted in response that he could not provide such a date because he did not know if the employment had terminated prior to 17^thApril 2020.

The Respondent submitted that a burden of proof rests upon the Complainant to establish that he remained on sick leave from 2016 until the date of his redundancy.

Discussion and conclusions on the appeal

The parties declined the opportunity, when invited by the Court to do so, to proffer testimony on any aspect of the matter before the Court.

This appeal comes before the Court on the basis of a common grounding assertion by both parties that the employment of the Complainant terminated by reason of redundancy within the meaning of the Act on 17^thApril 2020.The Respondent has contended that, notwithstanding the lack of controversy on this point, the Court should embark on an investigation of its own motion to test the parties’ shared assertion as regards the date and nature of the termination of the employment.

The Court has been offered no authority to support the proposition that it could, drawing on its jurisdiction under the Act, set aside or otherwise seek to undermine the proposition, notified in writing by the Respondent to the Complainant at the time, that the employment had terminated by reason of redundancy on 17^thApril 2020. Similarly, the Respondent has failed to identify a statutory provision which would confer upon the Court a jurisdiction such as permits an investigation of the sort contended for by the Respondent.

The plain fact of the matter before the Court is that the Respondent terminated the employment of the Appellant in April 2020 by reason of redundancy and so notified him at the address which he had provided to the Respondent. The Respondent has made written submission to this effect to the Court and has confirmed in oral submission at the hearing of the Court that this was the case.

In the view of the Court, nothing further arises on this point, particularly when the Respondent has repeatedly submitted that it remained its position that the employment had terminated by reason of redundancy on 17^thApril 2020.

The Court therefore concludes that the employment of the Complainant was terminated by reason of redundancy on 17^thApril 2020 and, having earlier concluded that the delay in making the within complaint was due to reasonable cause, to declare the Complainant to be entitled to the lump sum.

Decision

The Complainant, his employment having been terminated by reason of redundancy on 17^thApril 2020, is entitled to the lump sum payment provided for by the Act and calculated in accordance with the Act at Schedule 3.

The decision of the Adjudication Officer is varied.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
DC	______________________
16th March 2023	Chairman