Complainant

Respondent

Parties

Cynthia  Carroll

Mullingar Arts Centre Company Limited By Guarantee

Representatives

Sylvia Smith North Leinster Citizens Information Service

Ignatius Lynam LMCS Management Consultants

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-00051068-001

09/06/2022

The background to the complaint was the Covid-19 pandemic and its impact on the Respondent’s business activities and the Complainant’ employment.

The Complainant stated she commenced employment with Westmeath County Council on a part time basis in 1988, that she worked for Mullingar Arts Centre from 1998 and that from 2016 she was employed by the Respondent following a transfer of undertakings.  

The Complainant stated that due to the Covid-19 pandemic she was placed on layoff from March 2020. The Complainant stated that she kept in contact with the Respondent seeking a return to work date but that by letter of 14/4/2020 her layoff was extended until 5/9/2020. By letter of 16/6/2020 the Complainant stated she was advised that owing to the serious financial position of the Respondent her position may be made redundant.

The Complainant did not return to work after March 2020 and in September 2021 she engaged with the employer seeking redundancy payment. The Complainant stated that she was advised by the Respondent’s Director in September 2021 that she would not qualify for redundancy “because of her age and the fact that she was in receipt of her State Pension…”.

The Complainant outlined her exchanges with the Respondent throughout 2020, 2021 and 2022. These included her sending the RP9 Form to the Respondent requesting redundancy payment or a return to employment - to which she did not receive any response, the Respondent’s letter of  2/12/2021 which extended her lay off until 30 June 2022 and her sending  Form RP77 on 20 January 2022. Specifically the Complainant submitted that the Respondent failed to issue a counter notice to her RP9 Form thereby creating an entitlement to redundancy.  The Complainant clarified that she sent two copies of the RP9 Form on 26/11/2021 and 21/12/2021 – the second intended to correct a date error of 26/11/2020 to 26/11/2021.

On 15/7/2022 the Complainant received a letter from the Respondent offering her a resumption of employment with effect from 3/9/2022. The Complainant declined the offer by letter of 29/7/2022 and maintained she was seeking redundancy.

It is the position of the Complainant that she qualifies for redundancy payment in accordance with the terms of the Redundancy Payments Act [1967-2021] and that the Respondent has no legal basis for refusing same.

The Respondent outlined its dealings with Westmeath County Council prior to 2016 and stated it was a company limited by guarantee from 1998. The Respondent stated that the Complainant was employed on a part time basis on an annual fixed term contract from September – May and that she was laid off for June, July and August each year.

The Respondent outlined its exchanges with the Complainant during 2020 – 2022 including its initial letter of 13 March 2020 which advised the Complainant that her layoff was temporary and that “subject to the present shutdown been lifted [her] position will be reinstated”. The Respondent stated that its letter to the Complainant of 16/6/2020 did not notify her she was being made redundant but only alerted her to this possibility due the financial impact of Covid-19 on the Respondent’s activities. The Respondent stated that its letter of 14/8/2020 updated the Complainant that she would not be re-engaged until 9/1/2021 at the earliest dependent on business and that its subsequent letter of 2/12/21 extended the lay-off to 30/6/2022. The Respondent also outlined its letter to the Complainant of 15/7/2022 offering to re-employ her from 3/9/2022.

The Respondent stated that it did not receive the first RP9 Form until 21/12/2021 and did  not receive the second RP9 Form until 2/2/2022. The Respondent took issue with the dates on the RP9 Forms including on the basis that the lay off dates of  21/3/2020 - 26/11/2020 could not apply as they occurred during the period when Section 12 of the  Redundancy Payments Act [1967-2021] had been suspended. Accordingly, the Respondent submitted that the RP9 Form had been incorrectly submitted and should be set aside. The Respondent acknowledged receipt of the RP77 Form which it stated referred to a commencement date of 2004.

It is the position of the Respondent that the Complainant was not made redundant in March 2020 or anytime thereafter, that her position was never declared redundant, that she was laid off as a consequence of the impact of Covid-19 on the Respondent’s business, that she was offered resumption of her employment from September 2022, that the Complainant  retired/resigned from her employment of her own volition and that her position was filled via recruitment of a new appointee. In support of its position, the Respondent cited the Redundancy Payments Act [1967-2021], the Emergency Measures in the Public Interest (Covid-19) Act 2020 and SI 284/2021. In this regard the Respondent stated that the Complainant’s claim for redundancy was brought at a time when the Government had put the legislative provisions for redundancy in abeyance due to Covid-19. The Respondent further stated that Government statements at the time “….relative to the entertainment industry….made it impractical for the Arts centre to resume normal activities…..resulting in the reopening occurring in September 2022”.  The Respondent cited the Complainant’s letter of 26 August 2022 which it stated was seeking a termination payment and it stated that was the real objective of the Complainant – ie that “She simply wanted to retire and the desire for a severance payment and nothing else is what lies behind this case”. The Respondent submittedthat the Complainant was misusing the legislation. The Respondent further stated that due to the nature of her fixed terms contracts, the Complainant did not satisfy the requirement of 104 weeks continuous employment necessary for redundancy.

Section 7 of the Redundancy Payments Act [1967-2021] provides as follows:

“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known……as redundancy payment provided-

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts…..immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date”

Section 12 of the Redundancy Payments Act [1967-2021] provides as follows in relation to redundancy by reason of lay-off or short-time:

“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.

12 - (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.”

Section 13 of the Redundancy Payments Act [1967-2021] provides as follows in relation to the right of an employer to give a counter-notice:

“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.

13. - (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.

13. - (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.

13. - (4) For the purposes…..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) …… .

The Emergency Measures in the Public Interest (Covid-19) Act 2020 inserted Section 12A into the Redundancy Payments Act [1967-2021] the effect of which was to suspend Section 12 – ie that Section 12 of the Redundancy Payments Act  – “shall not have effect during the emergency period”. The emergency period was originally defined as 13 March 2020 to 31 May 2020 but was extended by the Government on a number of occasions, culminating in S.I. No. 284/2021 – which extended the emergency period to 30/9/2021.

Having considered all the information and submissions I have come to the following conclusions:

·        I am satisfied from the sequence of correspondence that the Complainant has established that she was laid off for the period 14/3/2020 up until 26/11/2021 and beyond. Whilst the original letter of 13/3/2020 referred to the Complainant as being made “redundant” – I accept this was a mistake on the part of the Respondent. The subsequent letters of 14/4/2020,  16/6/2020, 14/8/2020 and 2/12/2021 confirm the Complainant was laid off on an on-going basis due the impact of the Covid-19 pandemic on the Respondent’s business;

·        The Redundancy Payments Act [1967-2021] is clear at Sections 7 and 12 that an employee maybe entitled to a redundancy payment in a lay off situation.  In this instance I am satisfied the Complainant was laid off for the requisite period stipulated in the Act after the expiry of the emergency period - ie after 30/9/2021. Indeed the Respondent notified the Complainant on 15/7/2022 of resumption from 3/9/2022;

·        In relation to the RP9 Forms, I consider there is no specific requirement to serve an RP9 Form on any specific date. In this instance there were two Forms served – the first dated 26/11/2021 which identified the lay off period as 21/3/2020 – 26/11/2020 and the second also dated 26/11/2021 which identified the lay off period as 21/3/2020 – 26/11/2021. Having considered the submissions in relation to these Forms, I am of the view that the key issue is that the Complainant was laid off for the requisite period after the ending of the emergency on 30/9/2021. Furthermore, I am satisfied  there was no reasonable expectation or prospect of her resuming employment within four weeks of 26/11/2021;

·        The Respondent explained in its correspondence to the Complainant that Covid-19 was the ongoing reason for her lay off. However, I am satisfied that the Respondent did not issue a counter notice in response to the Complainant’s RP9 Form or contest any liability in that regard pursuant to Section 13(2) of the  Redundancy Payments Act [1967-2021];

·        Given the pattern of the Complainant’s employment with the Respondent, I am satisfied to reckon her service as continuous and uninterrupted by any lay off periods as provided for at Schedule 3 of the  Redundancy Payments Act [1967-2021].  

CA-00051068-001

For the reasons outlined this complaint is well founded. Accordingly I decide the Respondent should pay the Complainant her statutory redundancy entitlements based on the following criteria:

-        Date of Employment Commencement: 27/11/1998

-        Date of Notice of Termination: 26/11/2021

-        Date Employment Ended: 5/12/2021

-        Gross weekly pay: €174.00

-         

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

Covid-19; Lay-Off; Redundancy