Complainant

Respondent

Parties

Slawomir  Reyer

Squirrels Band

Representatives

Self-Represented

Mr G Lane of  Peninsula Business Services

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-00065696-001

29/08/2024

The Complainant was a General Operative with the Respondent, a small Building / Civil Works / Maintenance Company.

The work commenced on the 31st of July 2017 and ended on or about the 5th April 2024 although this date was contested by the Respondent.

The rate of pay was variable around €13.20 per hour with an average of 40 to 45 hours work per week.

The Complainant was seeking a Statutory Redundancy payment.

The Complainant was self-represented . He gave a lengthy Oral testimony supported by extensive Bank Records.

It was his contention that he had been dismissed on or about the 5th April 2024. He was due a Statutory redundancy payment as he had been in Respondent employment continuously since July 2027.

The Respondent’s contention that he had made the Complainant offers of reemployment were not accurate. At best it was very vague suggestions of part time work that were far from the full time work he had always been provided with. He could not be realistically expected to accept them.

The Respondent was represented by Mr Lane of Peninsula and submitted a lengthy written submission. The Principal Respondent, Mr. R, gave a substantial oral Testimony. There was little in writing between the Parties and verbal evidence became crucial.

The business was a small Civil Works & Construction maintenance operation. The work was variable and from time to time, particularly in the late Winter/Early Spring periods could often reduce due to a lack of customer demand.

On or about the 5th April 2024 the Respondent informed the Complainant, verbally, that work demand had fallen off and that he should go on the Social Welfare until things picked up again.

At the end of April, the Respondent had a few small jobs. He offered work of three days a week to the Complainant. The Complainant declined this offer. In the first week of June 2024 a resumption of full time (40 hours a week) was available and was offered to the Complainant. He declined the offer and informed the Respondent that he was seeking Statutory redundancy.

As full time work was available the Respondent explained to the Complainant that he was not eligible for Redundancy.

This complaint was made in conjunction with other complaints under ADJ-00052518.

3:1        Discussion /Legal issues.

Oral evidence was crucial. Parties were reminded by the Adjudication Officer that they were under Oath. A significant difficulty was that no written contracts or notices had ever been made. It was entirely verbal and in the Polish language.

The Legal position is as set out in the Redundancy Payments Act,1967- Sections 7,8, 9,11 & 15

In plain English he first requirement is that the Employment has to end either from the Employer side or the Worker side.

In this case the Worker did not resign and the Employer did not dismiss him. A situation of what could be called an “Informal Lay Off” took place in April 2024. In relation to Lay Off the Act refers to a minimum period of four weeks before an employee can initiate a Redundancy claim. In this case the layoff was ended by a verbal offer of a three day week in late April and later of full time work in the first week of June 2024.

Section 15 (1)  of the Redundancy Act is relevant.Disentitlement to redundancy payment for refusal to accept alternative employment.

15.—(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

 Section 15 clearly applies here – the Contract was never ended and an offer of resumption of work  was made in late April. The Respondent pointed to sub clause (d) above –“an unreasonable refusal” to accept work.

3:2       Adjudication Conclusion.

Taking into account that all communications between the Parties was verbal and in Polish the provisions of Section 15 above appear to apply. All were reminded that they were under Oath.

As no Termination of Employment took place and a realistic offer of continued work was made no Redundancy situation arose.

The claim is accordingly deemed Not Well Founded.

The Redundancy Appeal fails

( As an aside the issue of no Written Terms or Contracts was addressed in parallel Adjudication ADJ-00052518)

Redundancy, Offer of continued employment.