Complainant

Respondent

Parties

Tadhg  Keane

IBM Ireland

Representatives

Self

Johanne Duignan, Ledwith Solicitors LLP

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-00055677-001

23/03/2023

The Complainant has submitted a complaint asserting that he did not receive any redundancy payment.

The Respondent disputes the claim and asserts that the Complainant resigned from his employment with the Respondent.  The Respondent further submits that the complaint is out of time.

The Respondent submits that the WRC has no jurisdiction to hear this complaint pursuant to the Redundancy Payments Act as the Complainant did not refer his complaint to the WRC until 23 March 2023, some 105 weeks and six days post the date of the termination of his employment on 12 March 2021. This is outside of the statutory timeframe referred to in section 24 of the Act which provides as follows:

“…. 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…….

…….. 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…..”

The Respondent submits that the WRC does not have jurisdiction to hear the complaint in circumstances where the complaint was referred to the WRC outside of the statutory time limits. 

The Complainant submits that the processes of the WRC are not well known and that the information he needed to submit a redundancy related complaint was not easily accessible.

The Complainant further submits that the WRC online complaint referral system did not work when he tried to submit a complaint and that he was obliged to submit a manual complaint form.

Section 24 of the Redundancy Payments Act provides as follows:

24.(1)—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.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(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.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

Having regard to the provisions of subsections 24(1) and 24(2A) above, it is clear that, save for where subsection 3 has application, the maximum possible statutory time limit for making a complaint under the Act to the Workplace Relations Commission is 104 weeks after the termination of employment. This complaint was not made within that timeframe. 

No submission was made that section 24(3) of the Act has application to the circumstances underpinning this complaint. Consequently, I am of the view that the provisions of that section are not relevant to this case.

In conclusion and having regard to all of the circumstances of the complaint, I find that this complaint was referred to the Director General of the WRC outside of the prescribed time limits. 

I find that this complaint was not submitted within the jurisdictional time limit for an investigation by an Adjudication Officer and, as such, is not well founded.

Out of time – in excess of 104 weeks