Complainant

Respondent

Parties

Eileen  Synan

Field Management Ireland Limited

Representatives

Noelle Madigan

 Grainne Murphy, Director

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-00056498-001

05/05/2023

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

CA-00056498-002

05/05/2023

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

CA-00056498-003

05/05/2023

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

CA-00056498-004

05/05/2023

The Complaint Form was received by the Workplace Relations Commission on 5 May 2023

The Complainant sworn an Affirmation at the outset of the hearing as did the Respondent’s  Business Unit Director , Grainne  Murphy and the HR Manager, Samantha Carroll.

Documentation was furnished in advance by the Complainant with the Respondent relying on that same documentation.

Both sides availed of the opportunity to cross examine each other.

The name of the Respondent was amended at the hearing.

The Complainant commenced employment in 2004 as a demonstrator with the Respondent. She worked diligent without complaint until the Covid19 pandemic in 2020.

On 23 April 2022 she wrote to the Respondent seeking a response as to her employment status as she had not heard from her employer since March 2020. When there was no response to her email she again wrote to the Respondent on 20 June 2022 seeking redundancy. There was correspondence exchanged between her and employer where she was offered alternative work in another store, but it was the Complainant’s evidence that had lost trust in the Respondent. She stated that she assumed she would not be given first preference in being offered the work as there were other employees who were given preference in that store previously. Upon inquiry she confirmed that she did not ask nor was she told this to be the case.

In summary she felt that she was a loyal worker who had been left down by the Respondent in the manner in which she was forgotten about.

Ms Murphy for the Respondent gave evidence that the Complainant’s position still exists, and the company has vacancies open for her to return to work.

It was confirmed that the Complainant eared €10.10 per hour and worked 16 hours per week on average prior to the pandemic

It was Ms Murphy’s evidence that the Company fell short of what was expected and failed to contact the Complainant. It was her evidence due to employee turnover and the Covid19 pandemic that the Respondent omitted to contact the Complainant which she apologies for.

In July , August and October 2022 the Respondent wrote to the Complainant following receipt of her letters advising that there was work available for her and referencing the location clause in her contract of employment.

Ms Murphy confirmed that since October 2022 there has been no contact with the Complainant by the Respondent.

Given the time frame from the last date of work to the date of the complaint it is first necessary to consider whether I have jurisdiction to decide on this complaint.

The Complainant gave evidence that her last day of work was in an unknown date in April 2020. Section 24 of the Redundancy Payment legislation provided for a period of 52 weeks from the date of termination to file a complaint to the Workplace Relations Commission. Section 24 (b) specifically provides for time to run from the “(b) the employee has made a claim for the payment by notice in writing given to the employer,”. Consequently, it is not the last day of work but the date of notice given in writing.

It is also necessary to consider S.I. No. 284/2021 - Redundancy Payments Act 1967 (Section 12A(2)) (Covid-19) (No. 2) Order 2021 which had the effect of temporarily suspending the provisions of Section 12 of the Redundancy Payments Acts 1967 (as amended)  for the duration of the emergency period only, ending on 20 September 2021, in respect to an employee who has been laid off. Accordingly, for an employee s/he was not entitled to give notice of intention to claim redundancy during the emergency period.

The first correspondence from the Complainant came on 23 April 2022 but it was not presented in evidence nor did the Complainant give evidence as to its contents. The letter, dated 20 June 2022, was opened by the Complainant in which she expressly seeks redundancy. Therefore, applying Section 24 (b) of the Act, time began running on 20 June 2022 with the Complaint Form received by the Workplace Relations Commission on 5 May 2023. Consequently, I find that the Complainant’s complaint is within time and the WRC has jurisdiction to deal with it.

Substantive Claim

Section 12 of the Redundancy Payments Acts 1967 (as amended) provides:-

12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The Contract of Employment does provide for periods of lay off at Clause 17. It is further noted that Clause 17 states an employee will be given as much notice as possible for lay off.

There was no evidence presented of any communication from the Respondent to the Complainant in April 2020 or 20 June 2022 until its letter of 4 July 2022. I find this to be the date on which the Complainant gave notice of her intention to seek redundancy was in writing by letter dated, 20 June 2022.

Section 13 of the Redundancy Payments Act 1967 allows for an employer to serve counter notice on an employee within 7 calendar days “in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

On 4 July 2022 the Respondent confirming that work was available for the Complainant advised her there was alternative work in another store available for her and “if this role is of interest to you, please advise soonest by contacting me”

The  7 calendar days as specifically required by Section 13 had passed by 27 June 2022 with the response coming from the Respondent not forthcoming until 14 calendar days. Consequently, the Complainant is entitled to redundancy payment however, as she is considered to have voluntarily resigned, she is not entitled to her notice period pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

CA-00056498-001

I find the Complainant is entitled to redundancy payment and allow the appeal pursuant to the Redundancy Payment Acts 1967 – 2012 on the following basis:

Start Date: 23 June 2004

End Date and Termination Date: 20 June 2022

Hours Worked Per Week: 16 Hours

Weekly Gross Wage: €161.60

No Notice Period.

This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00056498-002

I find the Minimum Notice and Terms of Employment Act 1973 was not contravened

CA-00056498-003

I find the Minimum Notice and Terms of Employment Act 1973 was not contravened

CA-00056498-004

I find the Minimum Notice and Terms of Employment Act 1973 was not contravened

Redundancy – Minimum Notice – Lay Off- Notice of Intention – Counter Notice