Complainant

Respondent

Parties

Derek  Booth

Meath Community Rural & Social Development Partnership Limited Meath Partnership

Representatives

  Self-represented

Darach MacNamara B.L. instructed by Dillon Geraghty solicitors

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-00056512-001

07/05/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation while a witness for the respondent (its CEO) gave evidence under affirmation.  Both witnesses were cross examined by the opposing side.

The complainant submitted that he was entitled to a redundancy payment when his contract of employment under a Tús scheme with the respondent came to an end.

The complainant submitted that he initially received a contract for 12 months but that arising from the COVID pandemic this contract was extended to 116 weeks in total. He submitted that arising from the fact that he had a contract of employment, he was entitled to a redundancy payment. The complainant submitted that this entitlement arises from Section 9 of the Redundancy Payments Act.

The complainant submitted that Section 7 of the Act is generic and is not specific to his case.

Testimony:

The complainant stated in evidence that his employment came to an end when the employer decided to conduct its business with fewer or no employees, as per Section 7(2)(c) of the Redundancy Payments Act.  He also stated that he had a specific right to the payment of a redundancy lump sum in relation to his dismissal under Section 9 of the act.

Under cross examination the complainant confirmed that he was a job seeker and confirmed that he sought a placement in a community project where he had previously volunteered. He confirmed that at the conclusion of his contract he signed back on as a job seeker. He noted that the role of the Tús scheme was to take people off the live register. He noted that he didn't really benefit from his involvement with the scheme as he didn't gain anything that he wouldn't have had as experience already.

The complainant confirmed that he initially emailed the respondents seeking an update as to when his contract was going to expire given the circumstances of the COVID pandemic. He confirmed that he received a series of updates and was ultimately dismissed from his position in May 2023. He clarified that yes, he is claiming a redundancy lump sum. He noted that the administration side of his role did not change much under Covid but that the maintenance function was restricted in light of the lockdown.

The respondent accepted that the complainant was an employee, that he was employed for over two years and that there was continuity of service during his employment. The respondent submitted that the employee was dismissed, and that the definition of dismissal was accepted but that he was not dismissed by way of redundancy. The respondent submitted that no redundancy took place.

The respondent submitted that the employment contract came to its natural end. The respondent submitted that although the complainant was singling out a heading in the Act, headings are only an aide to interpreting an act. The interpretation of what amounts to a redundancy in the Act is governed by section 7(2)

The respondent submitted that the complainant has only narrowed down his case in the hearing, indicating that his redundancy falls within Section 7(2)(c) of the Act.  The respondent submitted that the employer has not decided to carry on the business with fewer or no employees but in fact continues to employ the same number of persons as it has always done.

Testimony:   Witness #1: the CEO

The witness gave direct evidence that it continues to operate with the same number of employees as previously.

Under cross examination he confirmed that it employs 284 placements and that these numbers remain static for the county. He confirmed however, that the number of placements available may vary across the county. The witness confirmed that the respondent had received confirmation from the government to extend the contract of people on job placements in light of the Covid-19 pandemic. He confirmed that employees’ contracts usually come to an end by reason of being fixed term or specified purpose but that due to the Governmental response to the Covid-19 pandemic.  He submitted that there is no reason why they wouldn't employ the same numbers as previously as they continued to have sanction and funding for that level of placements.

The complainant appealed the respondent decision not to award him a redundancy payment.

Section 9 of the Redundancy Payments Act deals with dismissal.  The fact of dismissal is accepted by the respondent.  The complainant submitted that the fact of dismissal gives rise to an entitlement to a Redundancy Payment.

Section 7(1) deals with an entitlement to a redundancy payment and states as follows:

(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.

Section 7(2) continues:

(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,

The complainant submitted that Section 7(2)(c) applies to the end of his employment relationship, but he provided no evidence of a desire of the respondent to carry on business ‘with fewer or no employees’.  Direct evidence by the witness for the respondent, which was not contested, was that the respondent continued to carry on business with the same number of employees as it had sanction and finance to do so.  In the circumstances, I find that the complainant has not established that Section 7(2) is applicable to the end of his employment relationship or that he was dismissed by way of Redundancy.   I find that he has not established an entitlement to a redundancy payment in accordance with the Act.  Accordingly, I disallow the complaint’s appeal.

The complainant’s contract was a fixed term contract but the principles governing the Tús scheme, and its objectives indicate that the contract has the nature of a fixed purpose contract at the same time.  The Government, in its approach to the Covid-19 pandemic, took a decision to extend contracts to those on government supported schemes.  Once the peak of the pandemic was passed, it took steps to revert to the original purpose of the scheme on a phased basis.  Accordingly, I consider that he complainant’s employment was terminated when his contract came to an end.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is to disallow the complainant’s appeal.

Redundancy Payment – redundancy not established – appeal disallowed