Complainant

Respondent

Parties

Gerard  Service

Tionscala GPE Teoranta

t/a GPE Industries

Representatives

  The complainant represented himself

Rebecca De Groot Peninsula

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-00053898-001

28/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053898-002

28/11/2022

The complainant was employed as a  general operative with the respondent from the  4th.August 2020 to the 28th.October 2022.He submitted that the respondent was in breach of the Redundancy Payments Act 1967 for failing to pay him his statutory redundancy  and that the respondent was also in breach of the Minimum Notice and Terms of Employment Act ,1973 for failing to pay him his statutory notice. The respondent rejected the complaints and contended that the respondent did in fact make  a redundancy payment to the complainant  and that the respondent had met their obligations under the Minimum Notice legislation by giving the claimant one week’s notice on the 19th.Oct.2022and paying the claimant on the 27th.Oct. 2022.

In his direct evidence the complainant stated that he had made enquiries on line and from Government  and European law sites and it was affirmed that he was entitled to redundancy once he had 2 year’s service. He said that the respondent was asserting that he had no entitlement to redundancy and that he knew his fixed term contract was to come to an end. He said he was originally hired to work on a large fibre glass project but that he had worked on other jobs also. The complainant said that he had completed an RP77 claim form. He acknowledged he had been paid a number of bonuses over the course of   his employment – he recalled receiving approx. €600 bonus at Christmas 2020, €2,500 at Christmas 2021 , a bonus of €2,500 in June 2022 and a bonus of €2,500 when his employment ended. He said he understood this final payment was effectively his Christmas bonus which would have been due in December but was paid early because his employment was ending. The complainant acknowledged that the respondent had been a good employer. The complainant said that all of his research indicated that once he had met the 2 years service criteria he was entitled to redundancy. The complainant said he paid 40% tax on his bonuses

The respondent’s representative submitted as follows:

It was submitted that the complainant commenced employment as a General Operative with the respondent on the 4th.Aug. 2020 on a specified purpose contract. The contract states “your employment will commence on the 4.08.2020 for the specified purpose of the Intel Bluejay project and shall terminate immediately on completion of the Intel Bluejay project. The Unfair Dismissals Act 1977-2007 shall not apply to the dismissal consisting only of the completion of the Intel Bluejay project”.

The complainant upon completion of the project was notified in writing 0n the 19th.Oct 2022 that his employment would terminate on the 28th.Oct.2022 as the “contract that you were employed to work on is now coming to an end “.The letter further states that the company is no longer “ able to offer you employment”.

The complainant was afforded one weeks notice of the termination of his contract of employment as per his Statement of Main Terms and Conditions as a result of the project coming to a natural end.

The complainant was paid for the week he worked up to the end of his employment as per his payslip dated the 27th.october 2022.

The project was completed in October 2022 and the complainant sought a redundancy payment , to which he was advised that a redundancy situation did not arise as the contract came to a natural end.

The complainant was advised in writing by the respondent on the 30th.Nov. 2022 that due to the contract being completed “the company was not obliged to make any  additional payments such as redundancy as suggested by you”.

The provisions of FTD146 Irish Museum of Modern Art v Stanley was invoked in support of the employers position. The following extracts from the determination by the Court regarding the definition of a fixed term employee under Section 2 of the Protection of Employees (Fixed Term Work) Act 2003 were referenced :

“a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event …” “The defining characteristics of a fixed term contract, or fixed term employment, is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract”.

It was further submitted that to be a valid fixed or specified term contract, the contract must be in writing, identifying the expiry date or completion of a project, signed by the parties to the agreement and note the non-application of the Unfair Dismissals legislation.

It was advanced that the claimant had been furnished with such a contract and had signed it on the 4.08.2020 and that the contract referred to the specific project to which the employee was assigned.

It was submitted that the claimant worked exclusively on this contract along with others, made up of fixed term employees and permanent staff for the duration of the project.

When the project came to an end some 2 years later, having been delayed by Covid, the complainant was advised in writing that his contract would be coming to an end.

It was submitted that the complainant was unavailable / unreachable for about 6 weeks and availed of 2 weeks parental leave “contributing for the non-conclusion of the specified purpose stated in his contract of employment and consequently for its extension over 2 years. “The respondent respectfully submits that there is no entitlement to redundancy payment in this matter in so far as the fixed term contract of employment between the parties extended over 2 years due to exceptional circumstances.”

It was submitted that “In addition, on the basis that the complainant was not entitled to a redundancy payment , the respondent discharged the payment of €2,500 due to that fact”.

It was further submitted that notwithstanding the above and without prejudice to the respondent’s position, should an award be made, the respondent submits that any possible award be compensated in relation to the redundancy already made to the complainant. It was contended that any possible award made in favour of the claimant would essentially be double recovery.

It was submitted that the complainant’s contract provides for one weeks’ notice and that this had been accepted by him and payment was made on the 27.10. 2022.

It was submitted that the complainant had also received a goodwill gesture of €2,500 and that consequently there were no monies outstanding and the complaints should fail.

It was submitted that the respondent had at all times treated his workforce with dignity and respect as he had done for the past 30 years and that the complainant had not suffered any detriment or loss. It was contended that the respondent had in fact paid a redundancy payment – the RP50 was not completed as part of that payment. It was submitted that the non completion of the RP50 does not constitute a failure to make a redundancy payment and that in this case the complainant received a sum of money that constituted a redundancy payment when he was paid €2,500 in lieu of redundancy.

In his direct evidence the respondent confirmed that he had a workforce of 50 employees with 40-45% being employed full time. As the work comes in people are allocated to jobs. Approx 20 fixed term employees were let go at the same time. The respondent confirmed the bonus payments made to the employees as set out by the complainant.

The respondent’s representative asserted that the company’s accounting system had no provision for making a “redundancy “payment and that consequently they paid a bonus. The respondent believed the complainant had no entitlement to redundancy as he was on a fixed term contract and consequently paid the bonus as a gesture of goodwill. The company were not unionised and all workers in the employment were paid the bonus – with the amount being calculated on the basis of hours worked.

I have reviewed the evidence presented at the hearing and the submissions made by the parties. I do not accept that the complainant’s absence for  period of 6 weeks owing to Covid or his 2 weeks absence owing to parental leave constitute a break in service and I am  satisfied that the complainant meets  the service requirements of 2 years as set out under the Act .I accept  that the reason for the termination of his employment falls within the definition of  redundancy  as defined in the Act .The complainant was recruited  for the Blue Ray project , the project was completed on the 28th.October 2022 .As a result there was a requirement for fewer employees as provided for in Section 7 of the Act .On that date the complainant had in excess of 2 years service and is therefore eligible for a statutory redundancy payment. I find the respondents argument that because there was no other way to pay redundancy other than via a bonus because the accounting system did not provide for the term “redundancy” unconvincing.  While I acknowledge the respondent’s bona fides in making a gesture of goodwill to the claimant and his colleagues, this bonus payment did not disentitle the complainant to his statutory redundancy. Accordingly, I am upholding the complaint under the Redundancy Payments Act 1967.

In light of my finding that the complainant had in excess of 2 years’ service, I am upholding the complaint under the Minimum Notice and Terms of Employment Act 1973.There is no dispute about the issuing of one weeks’ notice but arising from the length of service with the company, the complainant was entitled to 2 weeks’ notice.