Complainant

Respondent

Parties

David Mooney

Robert Brady T/A Bob The Fixer Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Self-represented

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-00063546-001

19/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant, respondent and a witness for each party undertook to give evidence under affirmation.  However, in the circumstances where the witness for the complainant was to give evidence on the facts of the layoff, which were agreed by both parties, there was no need to hear his evidence.

It was agreed by the parties that the respondent gave the complainant verbal notice of a short-term layoff on 18 January 2024.  This was confirmed in writing in a letter dated 23 January 2024.

The complainant’s case is that he was made redundant by way of layoff. He submitted that when he was laid off, he was not offered any further employment with the respondent. He submitted the appropriate paperwork to have his layoff regarded as a redundancy, but the employer contested that.

In his evidence he confirmed that on 18 January he was told there was no further work and that this was followed up with the letter on 23 January. He stated that he submitted an RP9 form seeking redundancy on 20 February but that the employer indicated that he would have full time work lasting longer than 13 weeks within four weeks of that date.

The complainant stated that he was not called back to work and submitted an RP-77 on 19 March.

The complainant stated that he called the other employee and was told that there was work available however he did not attend as the work was not what he was qualified to do.

The respondent’s case is that the complainant was laid off on a short time basis and that he was trying to find alternative employment for his staff.  He submitted that the complainant was offered work but chose not to do the work.

In his evidence the respondent notice that he was trying to find some work for his employees to do while he looked around for a longer-term contract. He confirmed that his business model involved sub-contracting from larger builders and that usually one contract run into another and that in this fashion he was able to keep his employees working on a full-time basis.

In the circumstances of this complaint, he knew that he did not have another contract to go to and sought temporary work for them to do, at their usual rates of pay. He said that he offered work to the complainant, but that he said that he was not a labourer and refused to do the work.

Section 11 of the Redundancy Payment Act, 1969 provides for lay off in certain situations, while Section 12 states as follows

(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 respondent laid off the complainant with effect from 23 January 2024 by way of written notification. The complainant sent an RP9 form on 20 February 2024 indicating his desire to have his layoff treated as a redundancy as it had persisted for more than four weeks.

The respondent countered the employees notice of intention to claim a redundancy lump sum indicating that it was reasonable to expect that within four weeks of the service of that notice (on 20 February 2024) that he would be in a position to offer the employee a period of not less than 13 weeks employment. It was obvious from the evidence provided by the respondent that he was not in a position to guarantee such employment, notwithstanding a certain expectation on his part.

The respondent confirmed the timeline of the layoff and confirmed that it lasted beyond the four weeks envisioned by the Act.  In the circumstances I am satisfied that the employees claim of redundancy following four weeks of layoff was valid and I am satisfied that the employee has established that he was made redundant in a layoff situation which is covered by Section 12 of the Acts.

Accordingly, I find favour of the worker in the appeal of the employer’s decision to deny him redundancy.

The complainant noted that he worked for the respondent for more than 14 years and that he was entirely tax and social insurance compliant for that period.

Having considered all the relevant information provided by both parties, I am satisfied that the complainant has established that he is entitled to a redundancy payment in accordance with Section 12of the Acts.  My decision is to allow the complainant’s appeal against the decision of the employer.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have decided that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 10 September 2009

Date of Termination: 20 February 2024

Gross Weekly Pay: €800

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