ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040863

Parties:

	Complainant	Respondent
Parties	John Barrett	Sd Couriers

Representatives

Self Represented

Complaint(s):

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-00051831-001	25/07/2022

Date of Adjudication Hearing: 21/04/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2014 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed.

Background:

The Complainant was seeking his statutory redundancy.

Summary of Complainant’s Case:

The Complainant was employed as Lorry Driver. He commenced employment on May 5th 1998 with Autotrans Ltd and worked for a number of companies without a break in service operated by the same family owners up to the time his employment ceased on December 31st 2021 when the Respondent lost a major order to a competitor.

The Complainants employment was continuous from May 5th 1998 to December 31st 2021 and his employment was transferred from company to company by the owners without interruption. He received no letters of transfer or P45s when the employment was transferred.

The Complainant earned 535 Euros per week when his employment ceased.

Summary of Respondents Case;

The Respondent advised the company is going through Insolvency at the moment and the company has ceased operations. The Company stated it had no objection to the Complainant getting his statutory redundancy entitlement, but it had no funds to pay it. It was currently dealing with a bill of 74k Euros due to the insolvency and had difficulties of paying that. The Respondent confirmed that the Complainant commenced work in 1998 with their father and had an unbroken period of continuous service with a number of companies owned by the family of the Father who set up the business. The Respondent advised the company ceased legally on June 4th 2022.

Findings and Conclusions:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 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.”.

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the evidence of the Parties I allow the Complainants appeal under Clause 7.2 (a) and I award him statutory redundancy on the following basis. Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; May 5th 1998

Date of Reckonable Service for Redundancy Payment Ceasing on: December 21st 2021

Gross Weekly Wage: 535 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

Decision:

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 allow the Complainants appeal.

Dated: 17th May 2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy