Complainant

Respondent

Parties

Kevin  Cunningham

LMK Detail Limited

Representatives

Thomas G Myles Era legal & Corporate Limited

James McEvoy Work Matters Ireland

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-00049482-001

29/03/2022

The Respondent is L.M.K. Detail Limited whose Registered Offices are at Unit 11 Shanowen House, Shanowen Road, Santry, Dublin 9.

The Complainant was employed by the Respondent until he was laid off in April 2020. Thereafter he applied for a redundancy lump sum pursuant to the Redundancy Payments Acts (“the Acts”). The Respondent did not pay this lump sum and contended that the Complainant was not entitled under the Acts to the lump sum sought. The Complainant contended that he was so entitled and sought an order directing the Respondent to pay the said lump sum.

The matter was heard before me at the offices of the Workplace Relations Commission, Lansdowne House in the City of Dublin on the 1st of June 2023.

The Complainant was represented at the Adjudication Hearing by Employment Rights Advice (E.R.A.). Written and oral submissions were made on behalf of the Complainant.

The Complainant gave evidence on affirmation. He said that he was laid off due to the pandemic lockdown on the 1st of April 2020.  He served a Form RP 9 on the Respondent on the 10th of December 2023.

It was contended on the Complainant’s behalf that in order to defeat the Complainant’s statutory claim for a redundancy lump sum initiated by way of Form RP 9, an employer must serve a written counter-notice within seven days of the date of service of the RP 9. As this was not done by the Respondent it was contended, the Complainant was entitled to a redundancy lump sum.

The Complainant’s representative cited the Labour Court decision in D & T Forkan Construction Limited v. Diamond RPD181

The Respondent was represented by Mr. James McEvoy of Work Matters Ireland. Written and oral submissions were made on behalf of the Respondent.

The Respondent contended that an offer of work was made to and accepted by the Complainant within four days of the service by the latter of the Form RP 9 such as to defeat the Complainant’s entitlement to a redundancy payment. 

The procedure surrounding the process of claiming a statutory redundancy lump sum arising from a period of lay off are set out in Sections 11, 12 and 13 of the Acts.

11.—(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as layoff.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short-time

for that week.

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 layoff 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.

12A – Not applicable

13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

The Complainant was employed by the Respondent as a carpenter. His commencement date was agreed as the 17th of February 2016. The parties agreed that his weekly wage did not fall below the sum of €600 per week and that figure was agreed as his weekly wage.  and he worked as normal until he was laid off due to the COVID 19 as of and from the 1st of April 2020.  He did not return to work after the lay-off and formed the intention to seek a redundancy lump arising from the continuing lay off. He could not apply for redundancy until after September 2021 due to the temporary suspension of Section 12 of the Acts during the emergency period (Section 12A of the Acts as amended).  Following the lifting of that suspension, the Complainant applied to the Respondent for a redundancy lump sum by serving a Form RP 9 which is dated and was served by the Complainant personally on the Respondent on the 10th of December 2021. It was not disputed that the Complainant was entitled under Sections 11 and 12 of the Acts to serve the RP 9 and to seek a statutory lump sum payment arising from the lay off. The respondent did not pay the Complainant’s statutory lump sum and disputed the Complainant’s entitlement to a statutory lump sum.  

In the present case it was agreed that the Complainant was placed on lay off within the meaning of Section 11 and further that he was entitled to claim a redundancy payment in accordance with Section 12.

The Respondent contended that the Complainant was offered the opportunity to return to his pre-lay off employment and that he agreed to do so the course of a telephone call between himself and Mr. Ciaran McKay of the Respondent The following statement from a letter from the Complainant to the Respondent dated the 15th of February 2022 (and included with the Complainant’s original submission) was put to the Complainant in cross-examination:

“RP 9 Form issued December – acknowledged by [Respondent] with return to work offer and acceptance 14/12/2021”

It was put to the Complainant that this statement evidenced the Complainant’s own acceptance of the fact that an offer, in effect it was contended, constituting a counter notice in response to his RP 9, was made and accepted on the 14th of December 2021 which was within the seven-day period from the date of service of the RP9 on the 10th of December 2022.  The Complainant accepted in cross-examination that he did have a telephone call with the Respondent’s Mr. Ciaran McKay, and he said that he did agree to return to work. However, he was adamant that while he did agree to return to work, he asked for the agreement to be confirmed in writing and the call ended on that basis. Mr. Ciaran McKay was not present to give evidence.

Section 13 provides for a situation where an employer can effectively defeat an employee’s claim for redundancy under Section 12 by serving what is known as a “counter notice” in response to the Form RP 9. the procedure requires the employer to serve the counter notice “within seven days after the service of the notice of intention to claim” (i.e. the Form RP 9). In addition, the counter notice must be in writing.  It was accepted by the Respondent that the offer made on the telephone call on the 14th of December 2021 was not subsequently put in writing.

In D & T Forkan Construction Limited v. Diamond RPD181 (2nd February 2018) the Appellant/Employer contended that it made “formal offers of work” to the Respondent/employee albeit that those offers were made beyond the seven-day period from the date of service of the RP 9 by the Employee. In affirming the decision which was under appeal (which decision had found that the employee was entitled to a redundancy lump sum) the Labour Court stated:

“The Complainant has fulfilled the requirements specified in the aforementioned sections of the Act; the Respondent did not do so. In all the circumstances, therefore, and having regard to the strict wording of sections 11 to 13 of the Act, the Court is obliged to affirm the Adjudication Officer’s decision in this case. It has no discretion to do otherwise.”

In the present case an offer of work was made. However, this offer was not made in writing but rather in a telephone call which, it was agreed, took place on the 14th of December 2021. Even if this offer were fully accepted in the course of that telephone call – and on the Complainant’s (uncontroverted) evidence it is clear that such was not his understanding in that he wanted the offer to be put in writing – it is a fact that in the present case a written counter notice as required by Section 13 was not served within 7 days of the date of service of the RP 9. Having regard to what the Labour Court (in the D & T Forkan case quoted above) described as “the strict wording of sections 11 to 13 of the Act” I find that I am bound by that decision, that I must interpret the provisions strictly and that I, like the Labour Court, have “no discretion to do otherwise”.  Accordingly I must find that the Respondent did not comply with the provisions of Section 13 (2) in that no written counter notice was served on the Complainant within seven days of the service by the Complainant of his Form RP 9; whereas the Complainant did comply with the requirements of Section 12 subsection (2) and is the entitled to a statutory redundancy lump sum calculated in accordance with his start date and the date of commencement of lay off in accordance with the Acts. Accordingly I direct the Respondent to pay the said sum.

For the foregoing reasons, I am satisfied that the Complainant’s position is redundant, and that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment based on the following facts

Commencement Date: 17th of February 2016

End of Employment: 1st of April 2020

Gross weekly pay: €600

CA-00049482-001

The Employer has failed to pay a redundancy payment in accordance with the Act and the within claim constitutes an appeal by the Employee (Appellant/Complainant) against that failure as provided for by s. 39, subsections (15). I allow that appeal.

A Redundancy Lump sum award should be made to the Employee/Appellant/Complainant based on the following details:

Commencement Date: 17th of February 2016

End of Employment: 1st of April 2020

Gross weekly pay: €600

Redundancy Payments Acts 1967 – 2014 – Section 11, Section 12, Section 13 – Lay off - Employee serving Notice claiming redundancy lump sum – agreement for employee to return to work – agreement not in writing – whether counter notice served – whether counter notice must be in writing - D & T Forkan Construction Limited v. Diamond RPD181 applied