RPD2419

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048551 (CA-00059390-005)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 May 2024 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 16 August 2024.

 The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal of an Adjudication Officer decision by Leigh Fogarty (the Appellant) of a decision of an Adjudication Officer in his complaint against Parnells GAA Club, Parnells GAA Club Ltd (the Respondent) made under the Redundancy Payments Acts, 1967 to 2014. The name of the Respondent carried on this decision is, as it must be, identical to the nomenclature carried on the face of the decision of an Adjudication Officer which is under appeal.

The Appellant has not been provided with work or wages by the Respondent since 12th March 2020.

The Respondent chose not to attend the hearing of the Court.

Background

The Respondent premises closed on 12th March 2020 by reason of the pandemic then in being. The Appellant confirmed to the Court that no notice of lay-off as required by the Act at Section 11 was given to him in March 2020 or at any time since. He also confirmed that he had served an RP9 form upon the Respondent on 4th May 2020. He stated that the Respondent had not responded to that form in any substantive manner.

The Appellant confirmed that he had never been dismissed from his employment by the employer and that he had not otherwise terminated the employment himself.

Relevant law

The Act at Section 7 makes provision in relevant part as follows:

General right to redundancy payment.

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 (and are in this Act referred to) 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, 1952 to 1966, 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 F18[four years] ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if F19[for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The Act at Section 11 makes provision in relevant part as follows:

Lay-off and short-time.

11.—(1) Where F29[…] 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 lay-off.

The Act at Section 12 makes provision as follows:

Right to redundancy payment 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.

(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.

Discussion and conclusion

The Appellant submitted that his employer never at any time gave him notice or advised him that he was being laid off or that his employment was being terminated. It can be concluded therefore that the employer never gave him notice of lay-off as required by the Act at Section 11.

In order for the Appellant to be regarded as laid off within the meaning of the Act, it is a condition precedent that he be given notice by the Respondent in accordance with Section 11(b) to that effect prior to the cessation of his employment for that reason.

In the absence of such notice being given to the Appellant it must be concluded that the worker’s employment did not cease by reason of lay-off within the meaning of the Act on 12th March 2020 or at any other time.

It follows that the serving by the Appellant of a notice to claim redundancy payment by reason of lay-off upon the employer on 4th May 2022 can have no meaning because the Appellant was not, within the meaning of the Act, laid off at that or any other time by the employer.

The Appellant has submitted that the Respondent did not at any time terminate the employment relationship and that he never terminated the relationship himself. It follows that the employment relationship remains in being, albeit the Respondent has ceased to pay the Appellant in accordance with the terms of his employment since March 2020, and has not provided him with work since that date.

The Court concludes that the Appellant has not been dismissed from his employment by reason of redundancy within the meaning of the Act, and neither has he acquired a right to redundancy payment by reason of lay-off within the meaning of the Act.

In those circumstances, the Court concludes that the within complaint is not well founded and that the within appeal must fail.

Decision

The complaint of the Appellant is not well founded and the within appeal must fail.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
ÁM	______________________
21 August 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.