ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051519
Parties:
| Complainant | Respondent |
Parties | Gerard Nolan | ICDS Constructors Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Clive Considine, Company Director Donal Glynn, Company Director |
Complaint:
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-00063159-001 | 29/04/2024 |
Date of Adjudication Hearing: 09/07/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment. The Complainant herein qualifies.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
Sometimes an Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal).
Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off.
Ideally, a Contract of Employment should reference the entitlement to put an employee on lay off or short time. Otherwise, it is not clear that an Employer can deduct wages per the Payment of Wages Act.
If an employee has been on short time (less than half wages), or been laid off for four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, the employee can give Notice in writing of the intention to claim redundancy on the expiry of that thirteen-week period (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time. The Employee must give the employer the notice required or specified in the Contract of Employment or if none exists then must give at least one week’s Notice of intention to claim Redundancy. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice.
There can be no doubt that the Employer has a right to Counter this application but Part C of the RP9 very clearly states that any such counter notice must be in writing and must be given within seven days of service of the employees notice. Also, the Counter Notice should indicate that there will be a commencement of full-time work within the next four weeks of the date of service of the Complainant’s Notice.
A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days that he or she is laid off.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of April 2024.. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. The Complainant gave his evidence on Affirmation. I was provided with some relevant documentation. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant believes that he was made Redundant. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by two company Directors. The Respondent provided me with a written submissions together with supporting appendices. One of the Directors gave evidence on behalf of the Respondent entity. This evidence was given on affirmation. The Respondent rejects that there has been a Redundancy and instead said it sought to put the complainant on a temporary layoff between contracts and that the complainant refused to return in circumstances where the complainant had taken up employment elsewhere and in effect resigned his position. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant is an accomplished craftsman having worked as a carpenter for in excess of thirty years. The Complainant came to work with the Respondent company in and around August of 2019. The Respondent is in the business of providing skilled workers to main Contractors on all sorts of building and infrastructure sites. I note that the website says that ICDS Constructors Ltd can source and supply supervisory staff, formwork carpenters, steel fixers, concrete workers, welders, ground workers and general operatives to any site location. The website further notes that ICDS Constructors Ltd. provide flexible managed construction crews, working to agreed targets, to the Building Industry across Europe since 1976 working in Holland, Denmark, Sweden, Germany, Belgium, and Ireland. I am satisfied that the Complainant knew or ought to have known that this Employer provides skilled ground staff and recognised tradespersons on sites, as and when required. I am also satisfied that the complainant knew or ought to have known that these sites ramp up and slow down at different rates and that the Employer herein has to manage the movement of the personnel across the sites as and when their clients require them. It is a regrettable fact that very occasionally an Employer might have to use the temporary layoff procedure to ensure it does not lose key staff between jobs. As it happens the Complainant remained employed as a carpenter on the one site for in excess of four years. It appears the requirement for carpentry work was slowly drying up in the run up to Friday the 26th of May 2023. The Employer was advising it’s two on site Employees (including the Complainant) that the client’s requirements was drying up each week up to the end of the week finishing Friday the 26th of May 2023. On that day I understand that one of the Company Directors (CC) rang the Complainant to say that he was no longer required on that site and was going to be laid off. I am satisfied that the Director used the term Lay Off in the sense of it being a temporary lay off situation and had not intended the Complainant to believe that he was being made Redundant. Both parties agree that there was no conversation around Minimum Notice entitlements and this, to me, is indicative of the intention to retain the Complainant and not make him Redundant. The Complainant would of course have been entitled to two weeks Minimum Notice if he was being made Redundant as of the 26th of May 2023. The Complainant received a letter the following Wednesday the 31st of May 2023 which was clearly intended to be used by the Complainant to get his Social Welfare entitlements as he was now on temporary Layoff. There can be no other explanation for the creation and forwarding of this letter to the complainant from his Employer. It is perhaps an unfortunate fact that the Employer failed to include the word temporary, but I cannot see that this letter is intended for any purpose other than to present to the Social Welfare for a Temporary payment. It is clear to me that the Employer (CC) and Employee herein had and continue to have a good working relationship and that there was a constant stream of What’s App messages between them concerning the availability of work. In fact, the Complainant appears to have been offered work of one sort or another on the 30th of May 2023 which was followed up on the 26th of June 2023. Further work was highlighted as being available on the 4th of July 2023 with follow ups all the way to the 12th of July. CC, on behalf of the Company told me in evidence that despite the initial lull period directly after the 26th of May, plenty of new work came on stream and the Complainant’s particular skill set was always in high demand. The Complainant in his evidence stated that he had found full time employment within days of the initial layoff and was seemingly not attracted to the work on offer from the Respondent between the cessation of his work on the 26th of May 2023 and the final confirmation that he was now fully employed elsewhere which happened on the 12th of July 2023. On balance, I am satisfied that the Complainant was put on temporary lay off on the 26th of May 2023. The Complainant did not apply for Social Welfare and instead sought and found alternative employment. To qualify for redundancy the complainant needed to give Notice in writing of intention to look for Redundancy after being laid off for four or more weeks. It is not clear to me that the Employee ever did this. Instead, there was up to six weeks discussion around acceptable alternative employment which culminated on the 12th of July 2023 with the Complainant confirming that he was now working full time elsewhere. I am satisfied that the Employer sought to terminate the period of Layoff and bring the complainant back into full time employment within days of the initial layoff. It was only in September of 2023 that the Complainant came forward looking for a Redundancy Lump Sum because he says that he was made Redundant. The Complainant forwarded the RP 77 form at that time.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00063159-001 – The Complainant was not made redundant from his employment with the Respondent company.
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Dated: 13th August 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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