Complainant

Respondent

Parties

Pauline  Shaughnessy

Edel Graham trading as Corrigkids

Complainant

Respondent

Representatives

  Self

Dominic Wilkinson B.L. instructed by Ryan McAllister ARAG Legal Protection

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-00059537-001

21/10/2023

The Complainant was employed by the Respondent as Childcare Assistant/Supervisor from the 1st of September 2011 until her employment ended on the 27th of August 2022. She sought a statutory redundancy lump sum which the Respondent did not pay.  The present application is in effect the Complainant’s appeal to the WRC arising from the failure of the Respondent to pay Complainant a redundancy lump sum calculated in accordance with her statutory entitlements pursuant to the Redundancy Payments Acts 1967 to 2022 (hereafter referred to as “The Acts”).

The Respondent confirmed that the correct identity of the Respondent is Edel Graham trading as Corrigkids.

The Complainant represented herself at the Adjudication Hearing. She gave her evidence on affirmation. She initiated the Complaint by way of WRC Complaint Form which was received by the WRC on the 21st of October 2023. On that claim form the following was the Complainant’s submission

“I took carers leave on 30th June 2022 from Corrigkids playschool as my special needs daughter was not well at the time. On the 27th August 2022 the owner of Corrigkids came to my home and told me on my doorstep that she had decided to close the playschool. An hour later a text came through to the parent’s page telling everyone that the playschool was closing with immediate effect. I text her on the 22nd 0ctober 2022 asking about redundancy as I had not heard from her and she told me I was entitled to no redundancy as I had left. I explained I had not left, I had only took carers leave. She offered to meet up for coffee but never heard from her again. I waited to see if she would get in contact but she didn’t. My work colleague was in the same boat as me, with no redundancy either so we enquired from Citizen’s advice who informed us to put in a complaint. I know it’s been after a year but didn’t quite know what to do. Edel has had no contact with me for over a year.”

In accordance with directions issued on the first day when the matter was listed before me the Complainant provided a more detailed submission as follows:

“Reasonable cause for failing to submit a claim within 52 weeks.

April to June 2022- the respondent did not mention at any time that she would have to close the business if she did not find a replacement.

22nd of August 2022- I was talking to my work colleague Margaret Kearns and she said that she was going down to Corrig kids to help clean up and get the place ready for the incoming children for the year 22/23.

27th of August 2022- the respondent called to my house, and we spoke on the patio. She told me she was closing the Playschool but might stay open for a month to give the parents a chance to find an alternative Playschool. I asked the respondent if it was because I took carers leave and she said no it was just the right time. I did not receive any letter from Edel at that time. An hour after this there was a letter sent to the parents group announced enclosure of the Playschool for the year 2022 to 2023. (evidence submitted)

September 2022- the respondent called to my house again for a chat but never mentioned redundancy or not been able to pay it.

20th of October 2022- I sent a text to the respondent enquiring about redundancy. (evidence submitted)

22nd of October 2022 – The respondent sent a text saying I was not entitled to redundancy as I had left employment. I replied saying I did not leave employment. I only took carers leave. The respondent replied and said that she didn’t understand and suggested we meet for a coffee to talk about it.

26th of October 2022- I text the respondent back and told her we could meet up for a coffee to discuss it but never heard from her since.

7th of September 2023- I sent an email to the respondent enquiring about redundancy again but got no reply.

6th October 2023 – I signed a RP77 form and sent to the respondent. I ticked the box ‘The grounds of my dismissal constitute redundancy, but I have not received a redundancy form RP50 form nor a lump sum payment. I request these”.

18th October- I sent in a complaint form to WRC. I put ‘date employment ended’ on 30th June 2022 as this was the day my carers benefit started.

In conclusion I feel that as an employee and a friend of the respondent for nearly 11 years I delayed making a complaint as I thought my past employer would’ve contacted me in some way about redundancy.

I took Carers Leave as my daughter who has Down Syndrome had some health issues at the time. I had a lot of appointments to attend to, but I am not using this as an excuse by no means, but I thought in good faith my past employer would get back to me in someway.

I was not given an official date of termination of employment as no correspondence was given to me at any time, only the text letter to parents group.

I did reach out to my past employer to ask about redundancy, but I was told I was not entitled to it. She suggested to meet up for a coffee to discuss it of which I agreed to but never heard from her since.

My work colleague Margaret Kearns called me several times and she informed me that she was in correspondence with the respondent about redundancy but was getting nowhere.

As I was on Carers benefit, I wasn’t sure of the correct procedure as I did not receive an official date of dismissal and I wasn’t sure of when the 52 weeks started from.

In December 2023 I took on relief work in the local school as an SNA for two days one week and three days the next. When I received my wages the following year in 2024, I could see I was taxed very heavily. I contacted the Tax Office and they informed that my job with Corrigkids were still active, and all my credits was going there so I could only close my employment from Corrigkids from January 2024. (evidence submitted)

So, to summarise the following points which led to the confusion and uncertainty of what exactly was to be done and the reason for failure to submit a claim within the time frame;

-             No notice in writing and no official date.

-             I was told initially was not entitled to any redundancy.

-             No RP50 redundancy form was received from employer.

-             All attempts to contact past employer were unsuccessful.

-             Job was still active on my tax page in 2024,I had to close it myself.

-             When did the 52 weeks start in my case?”

The submission also cited a decision of a WRC adjudicator (issued in  January 2021) in the case of A Deli Assistant -v- a Sandwich Shop ADJ-00027111

In accordance with directions issued on the first day when the matter was listed before me the Complainant provided a more detailed submission and the Respondent who had already delivered a detailed submission, provided a updated submission which included the following:

“…It is respectfully submitted that the Complainant bears the burden of proof in respect of her complaint to the WRC, which is disputed.

Timeline

It is respectfully submitted that the Respondent will provide further and better particulars in respect of each matter set out below when giving evidence.

The Respondent operated a playschool and was regulated pursuant to Part VIIA of the Childcare Act 1991 was amended by the Child and Family Agency Act 2013 by the insertion of Part VIIA. s58B(1) of Part VIIA enables the Minister to “…make regulations for the purpose of securing the health, safety and welfare and promoting the development of children attending early years services…” s58B(2)(e) provides for the making of regulations by the Minister to do as follows: “…prescribe the minimum level of qualifications for any class or classes of persons working in an early years service…”

On 30 June 2016 the Child Care Act 1991 (Early Years Services) Regulations 2016 came into effect. Regulation 9(4) of the 2016 Regulations provides for a minimum qualification criteria as follows: “A registered provider shall ensure that, without prejudice to the generality of paragraph (2) and subject to paragraphs (5) and (6), each employee working directly with children attending the service holds at least a major award in Early Childhood Care and Education at Level 5 on the National Qualifications Framework or a qualification deemed by the Minister to be equivalent.”

5 September 2011 – The Complainant commenced employment with the Respondent as a Early Years Practitioner. The Complainant was paid a gross weekly wage of €245 per week.

13 April 2022 – The Complainant advised Ms Edel Graham that she wished to take Carer’s Leave. The Complainant asked Ms Graham to sign a form for Carer’s leave which it is respectfully submitted was a generic template type form.

April to June 2022 - Ms Graham spoke with both the Complainant and another employee Ms Margaret Kearns and advised them that if she did not find a replacement for the Complainant it would mean that she would have to possibly close her business. It is respectfully submitted that the Respondent had to employ an employee with the same qualifications as the Complainant for the business to remain open.

30 June 2022 – On or about this date the Respondent’s business closed for the summer break. On the WRC Complaint Form the Complainant has stated that her employment end date was 30 June 2022.

June to August 2022 - The Respondent was unable to recruit a replacement for the Complainant.

Week commencing 22 August 2022 – Ms Graham spoke with Ms Kearns during this week and advised her of her concerns about the coming year and the options around staffing.

27 August 2022 – Ms Graham called to the Complainant’s house and advised her that the decision had been made to close the business. On or about this date Ms Graham sent the Complainant a message on WhatsApp about the intention to close the business.

27 August 2022 – Ms Graham issued a letter on a WhatsApp group which included parents and the Complainant confirming the intention to close the business. If the business was to re-open this would have occurred on or about 7 September 2022.

5 to 7 October 2022 – The Complainant and Ms Graham exchanged WhatsApp messages about a reference for a person called Laoise.

20 October 2022 – The Complainant sent Ms Graham a WhatsApp message asking for a letter to say she was on Carer’s leave and not receiving a wage and asked whether or not she was entitled to redundancy.

22 October 2022 – Ms Graham sent the Complainant a WhatsApp message asking if the letter from June was enough and stated that as the Complainant left employment there was no redundancy. The Complainant responded stating that she did not leave employment but took Carer Leave and mentioned she needed information for her accountant. Ms Graham messaged saying she did not understand and suggested meeting for a coffee.

26 October 2022 – The Complainant messaged and agreed to meet for a coffee and advised that she had been informed that as she was on Carers Leave she was entitled to redundancy.

Friday 6 October 2023 – The Complainant signed an RP77 and ticked the box with the following wording: “The grounds of my dismissal constitute redundancy but I have not received Redundancy Form RP50 nor a lump sum payment. I request these.”

Monday 9 October 2023 – Ms Graham underwent an operation followed by a period of recovery.

Tuesday 10 October 2023 – Ms Graham received a copy of the RP77. It is respectfully submitted that this was 58 weeks and 3 days after the Ms Graham notified the Complainant that the business was to close and the Complainant was provided with a copy of a letter issued via a WhatsApp group for parents that included the Complainant as a member of the group, confirming this.

21 October 2023 – The Complainant submitted a WRC Complaint Form. “

Text Messages were appended to the submission (discussed in detail in Findings section o this decision). 

The Respondent cited Section 6 of the Carer’s Leave Act 2001 and s10 of the Social Welfare Act 2000 amended the Social Welfare (Consolidation) Act, 1993 by inserting Chapter 11A and s82A

The Respondent quoted an information page from the Citizen’s Information website.

Sections 2, 24, 53 Redundancy Payments Act 1967 were quoted and the submissions continued as follows:

“Submission of the Claim for the Purposes of s24 Redundancy Payments Act 1967

It is respectfully submitted that the Complainant submitted the RP77 to the Respondent which was received on 10 October 2023, some 58 weeks and 3 days after Ms Graham notified the Complainant that the business was to close and the submission of the claim to the WRC was some 11 days later.

It is respectfully submitted that the Complainant bears the burden of proof in respect of her complaint to the WRC, which is disputed.

More particularly the Complainant bears the burden of proof to show that she was an employee at all material times and that if so proven that a claim was made to the Respondent Employer by notice in writing within 52 weeks beginning on the date of dismissal or the date of termination of employment. Incircumstances where no such claim by notice in writing was made within 52 weeks beginning on the date of dismissal or the date of termination of employment the Complainant can make a claim within a period 104 weeks beginning on the date of dismissal or the date of termination of employment subject to the Complainant establishing to the satisfaction of an Adjudicator the following: that she was an employee at all material times; that she made the claim within the aforementioned 104 week period; that she was entitled to the lump sum; that the failure to make a claim by her during the 52 week time limit was due to “reasonable cause”. It is respectfully submitted that the issue of “reasonable cause” has not been addressed and particularised on the face of the Complaint Form. It is respectfully submitted that if the foregoing is not satisfied there is no jurisdiction under the Redundancy Payments Act 1967 to determine the complaint.

Further or in the alternative, the Complainant bears the burden of proof to show that “…a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the [Director General] under section 39…” within 52 weeks beginning on the date of dismissal or the date of termination of employment. In circumstances, such as the within matter, where no such referral has been made to the Director General within 52 weeks beginning on the date of dismissal or the date of termination of employment the Complainant can make a referral within a period 104 weeks beginning on the date of dismissal or the date of termination of employment subject to the Complainant establishing to the satisfaction of an Adjudicator the following: that she was an employee at all material times; that she made the referral to the Director General within the aforementioned 104 week period; that she was entitled to the lump sum; that the failure to make a referral by her during the 52 week time limit was due to “reasonable cause”. It is respectfully submitted that the issue of “reasonable cause” has not been addressed and particularised on the face of the Complaint Form. It is respectfully submitted that if the foregoing is not satisfied there is no jurisdiction under the Redundancy Payments Act 1967 to determine the complaint.

The test for “reasonable cause” was addressed by the Adjudication Officer in the case of Catherine Egan v Tallaght University Hospital Adjudication Reference: ADJ-00046177 in the following terms:

The decision in Tony Conry v. Vendor Finance Ireland Limited ADJ-00031693 was also cited

There are two issues which arise in this case:

!. Did the Complainant voluntarily resign from her position in June 2023? If she did so, it follows that she is not entitled to a redundancy payment.

2. If the Complainant had not left her employment when the business closed, she is entitled to a redundancy payment provided that claim for a redundancy payment was made within the time prescribed by the Redundancy payments Acts.

Whether the Complainant Left in June 2022

The Complainant argued that she had not left her employment in June 2022. She said that she met with the Respondent and explained to her that she needed to care for her daughter and that she would have to take leave and that she was applying for Carer’s benefit. A form was given to the Respondent who signed it but neither party could produce the form. The Complainant’s last day working at the Respondent’s creche was the 30th of June 2022. She explained that this was the reason why she put this date as the date of cessation on her WRC Complaint Form but that she did not intend to indicate by so doing that she left her employment altogether on that date.

The Respondent said that she did not authorise carer’s leave because she needed the Complainant’s qualifications and experience, and she feared for the future of the creche if the Complainant left. However, she fully understood the Complainant’s position and she knew that she could not prevent the Complainant from leaving. The Respondent recalled signing a form which she thought was for social welfare. However, she was adamant that she did not authorise carer’s leave for the Complainant. Counsel submitted that carer’s leave must be specifically applied for and approved and unless and until it is approved in writing in compliance with Carer’s Leave Act 2022, carer’s leave does not come into existence.

The Respondent further she contended that the advice which she received at that time (from an advisor other than those presently representing her) was that the Complainant left her employment.

In the course of the hearing, it was confirmed that the Complainant did secure state carer’s benefit (from 30th of June 2022 to the 28th of June 2024) as confirmed by a letter from the Department of Social Protection. However, the Complainant accepted that this is what she meant when she referred to carer’s leave and she accepted that she never applied for or got carer’s leave from the Respondent, and it became clear that what she got was carer’s benefit from the state. She said she mixed up the terms Carer’s Benefit and Carer’s Leave This being the case the Complainant argued that before the decision was made to close the creche she was asked by the Respondent to “help out” in October 2022 and that she agreed to do so. She said this demonstrated that she had not left but was in effect on leave of absence.  She contended that she had not left employment but that she was on “some form of leave” and she did not leave her employment altogether in June 2022.

I am satisfied that in June 2022 the Complainant did not take carer’s leave but that she did apply for and received carer’s benefit. The former is a state benefit, whereas the latter is leave which is sought from the employer and must be approved. The formalities were not completed in accordance with the requirements of the Carer’s Leave Act 2022. In fact, no formalities at all were applied to the situation by either party. No paper trail was available; in particular, there was no written confirmation by the employer confirming that the employment had come to an end. In the absence of any written communications, particularly from the employer, I must endeavour to ascertain the intention of the parties. In this regard I take the view that if a complete cessation as of the 30th of June 2022 was agreed and understood then the Respondent would have confirmed this in writing which was not the case. Moreover, it is noteworthy that when the Respondent did decide to close the business, she advised the Complainant personally that she was doing so which would not have been necessary if the Complainant had already left two months or so previously.

In such circumstances I agree with the Complainant’s contention that she was on, as she put it, “some form of leave” albeit that the situation might more properly be described as leave of absence. Given the explanation above and the evidence given, I accept that the Complainant was mistaken when she put the date of cessation as the 30th of June 2022 on her WRC Complaint Form.

For the reasons stated above, I find on the balance of probability, that the Complainant did not leave her employment in June 2022 and that she is not for that reason disentitled to a redundancy payment arising from the closure of the Respondent’s business on the 27th of August 2022.

Whether the Claim is Time Barred

The Respondent contended that both the RP77 and the WRC Complaint Form were delivered later than 52 weeks from the date of termination in August 2022. It was contended that even though an extension of the 52-week period is provided for in the Acts, up to a maximum of 104 weeks post-termination, such an extension can only be granted where the Complainant can show that reasonable grounds existed for the failure to make the claim within the 52-week period. It was contended that there were no reasonable grounds for such an extension and that the claim was out of time. 

The Complainant accepted that the claim was made more than 52 weeks from the date of termination of her employment. However she contended that the circumstances of the case were such as to constitute reasonable grounds for an extension of time up to and including when the claim was made which although it was beyond the standard 52-week period, was within the maximum allowable period of 104 weeks post termination. 

Date of Dismissal

It was accepted that the Respondent’s creche closed on the 27th of August 2022. The Complainant accepted in cross-examination that this was so and that there was no further employment beyond this time.

Dismissal is defined in Section 9 of the Redundancy payments Act 1967, (where relevant) as follows:

“Dismissal by employer

(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice”

In such circumstances, I find as a fact that the Complainant’s employment was terminated without notice within the meaning of Section 9 (1) (a). I find that the date of dismissal was the 27th of August 2022. It follows that the RP77 and the WRC Complaint form were both served outside of the 52-week period commencing on the date of termination of the Complainant’s employment.

Section 24 of the Redundancy payments Act 1967 provides (where relevant) as follows:

“(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

…

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the [Director General] under section 39.”

In relation to the present case the way in which the claim for a redundancy payment had to be made by the Complainant was either

-          By making “a claim for the payment by notice in writing given to the employer”

OR

-           Referring a question as to the right to the payment to the WRC.

These two options are alternatives and thus doing either one should be sufficient to ‘interpose’ the claim - in other words to stop the initial limitation period of 52 weeks from running. An issue may arise where a claim for payment has been made within time and the employer disputes liability or fails to respond or to make the payment and a reference to the WRC is then made out- of-time. In such a situation the provisions would seem to suggest that the claim may be initiated   (‘interposed’ ) as soon as ‘a claim for the payment by notice in writing [was] given to the employer” under paragraph (b).

Assuming the foregoing analysis is correct, it follows that if the Complainant made a communication to the Respondent within the 52-week period commencing on the 27th of August 2022 which could be classified as “a claim for the payment by notice in writing given to the employer” as provided for in paragraph (b) then that claim for payment would have the effect of interposing the claim and thereby stopping the time within the meaning of paragraph (b).

In this case there is no doubt that a document constituting a “a claim for the payment by notice in writing given to the employer” by the Complainant to the Respondent when the Complainant served a completed, dated and signed Form RP77 on the Respondent. However I find as a fact and it was clear from the evidence that that the Complainant’s Form RP77 was not served until the date of its signature at the earliest. The RP77 is dated the 6th of October 2023 but was more likely not received by the Respondent until the 10th of October 2023. Both of these dates fall beyond the 52-week period prescribed by Section 24. 

Aside form the Form RP77, the Complainant pointed to two other communications where she mentioned redundancy.

The first of these communications was an exchange of text messages on the 22nd of October 2022 which was well within the twelve-month period, where the Complainant asked the Respondent

“…are we entitled to redundancy or anything…”.

The response was:

“…as u left employment there is no redundancy…” 

This text is clearly a question, and it cannot be construed as a demand or a claim for redundancy. Accordingly, I find that it does not constitute “a claim for the payment by notice in writing given to the employer” for the purposes of Section 24 (1) paragraph (b).

The second communication identified by the Complainant was allegedly sent to the Respondent on the 7th of September 2023. The Complainant could not be sure whether it was an email or a text message.  She produced a copy of the text of the communication which reads as follows: 

“I am sorry to bring this up but I am trying to sort out financial affairs and am being asked about statutory redundancy which I did not receive[d]. I have enquired into it and I was definitely entitled to something because I was only on Carers benefit. I know things are not easy for you and I don’t mean to be horrible but I was told we could have been compensated in some way by the government. Workplace Relations had informed me of this. Unfortunately  it should have been done within the year so I don’t know how that is going to go now. We will probably lose out now. Going to look into it anyway in some way.”

The Respondent denied that she ever received this email. It is unnecessary for me to make a finding on whether this email was received or not for two reasons. In the first place I find that this email does not constitute “a claim for the payment by notice in writing given to the employer” and secondly even if it does constitute such a claim, this communication was already out of time being more than 52 weeks after the 27th of August 2022 and the text actually acknowledges this.

This then leaves the RP77 Form as the only document capable of constituting “a claim for the payment by notice in writing given to the employer”. There is no doubt that it is such a claim. However, there is equally no doubt that it was delivered beyond the period of 52 weeks from the date of termination on the 27th of August 2022.

Extension of Time for Reasonable Cause

Having found that the claim for a redundancy payment was made beyond the initial 52-week period, I must now consider the Complainant’s application for that time to be extended.

Section 24 (2A) of the Acts provides

“Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the [adjudication officer, if he or she is satisfied] that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

This and similar provisions in other employment statutes have been the subject of very clear and well-established interpretations by the High Court and Labour Court as correctly quoted by the Respondent’s counsel. The quotations relied upon by the Respondent were from a recent decision of a WRC adjudicator in Egan v Tallaght University Hospital ADJ-00046177 but the same quotation appears in many decisions and represents a current statement of the law. The statement in question is as follows:

“The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338) wherein the Court held:

“…It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at 315 Costello J in the High Court construed the term “good reasons” as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).”

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”...”

Grounds for Reasonable Cause Advanced by the Complainant

Submissions and Evidence

In her submissions the Complainant summarised her grounds which are quoted hereunder. I have re-sequenced those grounds and added numbering to facilitate the manner in which I will consider each of them: 

1            No notice in writing and no official date.

2            No RP50 redundancy form was received from employer.

3            Job was still active on my tax page in 2024, I had to close it myself.

4            When did the 52 weeks start in my case?

5            All attempts to contact past employer were unsuccessful.

6            I was told initially was not entitled to any redundancy.

In addition to these points the Complainant relied on a decision of a WRC adjudicator (issued in  January 2021) in the case of A Deli Assistant -v- a Sandwich Shop ADJ-00027111. This case ties in with the final bullet point (numbered 5 and 6 above) from the Complainant’s summary. These latter issues were the focus of much of the evidence and will be discussed further on in this decision

Lack of Notification by the Respondent

Points 1-4 inclusive revolve around a central issue which is the fact that written notification of the redundancy of the Complainant’s position was never communicated to her. In this regard the Respondent accepted that she did not issue termination letters when the business closed. She explained that the circumstances of the closure of the creche were very unhappy for her personally. She did not want to close but she felt that she had no choice but to do so as she could not recruit sufficient numbers of suitably qualified staff to operate safely and within the applicable childcare worker-to-child ratios. She accepted that she should have issued written termination letters to her employees including the Complainant but due to the amount of administrative work involved in closing the creche including notifying the parents, she did not do so. She did not issue written communications immediately following the closure of the creche due to family and health issues. The Respondent’s business was a sole tradership and she had to work with her accountant to close off the books of the business. Due to the applicable tax year running a year in arrears, the Complainant suggested that this may have been the reason why the Complainant was still registered with revenue as employed by the Respondent.

In relation to the present case the following is what was needed for the Complainant’s claim for a redundancy payment to be pursued in accordance with the Acts:

1. That she was dismissed by reason of redundancy. The reasons for redundancy are set out in  Section 7 (2) and include (at paragraph (a)), insofar as is relevant to the present case:

“the fact that [the] 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”

1. Such a “dismissal” is defined in Section 9 and includes insofar as is relevant to the present case, a termination without notice.

1. Where a dismissal by reason of redundancy arises, for the purposes of the present case, the employee must make a claim in writing for a redundancy payment.

The above provisions describe the circumstances whereby, in the present case the entitlement will arise. Most importantly however, it is clear that the entitlement is not automatic but it must be claimed by the employee (normally within 52 weeks of the termination date). Indeed because of the way in which the legislative system is set up, the present process is best described as an appeal to the WRC from a refusal (or in this case the failure) on the part of the employer to pay the claimed redundancy lump sum.

There is a statutory obligation on an employer to provide an employee with not less than 104 weeks service with notification of his/her proposed redundancy. These obligations are provided for in Sections 17 and 18 of the Redundancy Payments Act 1967 - as amended. However these provisions make no reference to the process whereby a redundancy is to be claimed by an employee  - Sections 9 and 24 as discussed above - nor do Sections 9 and 24  make reference to Sections 17 and 18. There is no provision whereby the entitlement is triggered by or postponed until notification of the dismissal by the employer. The definition of dismissal includes where it occurs “without notice”. I therefore find that the failure by the Respondent to notify the Complainant in writing of the redundancy did not ‘stop the clock’ as it were from running in relation to the time limit for making the claim.

Where an employee is unaware of his/her termination date this may in certain circumstances, constitute reasonable cause for a delay in submitting a claim for redundancy. This is what occurred In Serdang Ltd v Sowinski RPD 2/2023, where the Labour Court found as a fact that:

“…the Complainant was not aware of the fact or date of his redundancy until some considerable time after its occurrence”

In that case the employer did issue a notification in writing to the employee, but it found as a fact that he was unaware of the termination until a later date.

In the present case the opposite applies in that there was no written notification of termination sent by the Respondent to the Complainant, yet the Complainant was nonetheless aware of the closure of the business. In the present case there was no written notification, but it was accepted by the Complainant that the Respondent called to her house personally and advised her that the creche was closing. Moreover, the Complainant accepted that she was a party to a WhatsApp group (albeit that the parents were also parties to that group) where a communique was issued by the Respondent to the Parents on the 27th of august 2022 in which the Respondent announced that she was unable to open the creche for the academic year 2022/2023. The Complainant accepted that she received and read this communique. Finally in answer to a question put by the Respondent’s counsel the Complainant accepted from the 27th of August 2022 the Respondent’s business was closed and that there was no work for anybody.

I find that although the Complainant did not receive written notification of her termination and consequently did not receive notice, she was nonetheless actually aware that her employment was terminated on the 27th of August 2022. In such circumstances the absence of notice – or for that matter of any other documentation – does not affect the fact that any redundancy which the Complainant wished to make had to be claimed by her within 52 weeks of that date.

On a separate but related the Complainant also said in her evidence that she did not know that the closure of the creche was permanent, and she thought it possible that it might re-open on another date. This belief or hope does not constitute a reasonable basis for not making a written claim for redundancy and as it happens even this eventuality is covered by the system provided for in Sections 11-13 of the Redundancy payments Acts 1967 (as amended) which allow for a redundancy claim to be made after a specified period of temporary lay-off or short time. In other words an entitlement to claim redundancy can arise even where the situation leading to the loss of paid employment by the employee is temporary in nature.  Again, with this type of situation the employee must initiate the process if a redundancy payment is being sought.

I have found that the failure to provide notice of proposed redundancy does not affect the operation of Sections 9 and 24. The same is also true in relation to the apparent failure to advise the Revenue Commissioners that the Complainant had ceased to be employed by the Respondent. In this regard the Respondent argued that she was not responsible for the tax affairs of the Complainant, and she suggested that the reason why the Revenue records were not updated may also have related to the fact that the tax returns for the business were always submitted for the year immediately preceding any given year. I am not in a position to make any findings on this issue except to say that the anomaly as with the failure to give notice of proposed redundancy does not of itself directly affect the operation of the relevant sections which govern the making of a claim for redundancy.

Having found that the failure to notify the Complainant in writing of her redundancy or for that matter to update her tax records, does not directly alter the obligation to make the claim for a redundancy payment within the prescribed 52-week period I must still rule on the more general point as to whether these issues or any of them could afford the Complainant with reasonable cause  for her failure to make the claim within that time. I shall consider this issue generally by reference to the available evidence.

As regards whether the failure to notify the Complainant of her redundancy constitutes reasonable grounds, it is arguable that if the notification had been issued this might have focused the mind of the Complainant and highlighted that she was being made redundant and may have prompted her to seek advice and pursue the claim more actively than she did. On the other hand is the fact that the Complainant was clearly sufficiently aware of her possible right to redundancy as evidenced by her query to the Respondent in October 2022. The response given by the Respondent was that the Complainant was not entitled because she had left. The Complainant clearly had a different view and given the fact that her former employer had informed her of her (the Respondent’s) position one would have expected the Complainant on receiving this response to immediately take active steps to secure her entitlements. This the Complainant did not do, and she did not in her evidence clarify how if at all, the failure to notify her of her dismissal by reason for redundancy had anything to do with her failure to make a written claim for a redundancy payment. Clearly, she was unaware at that time of the revenue anomaly so this could not have played any part in her inertia.

It would appear that he Complainant was in need of advice. It appears that she may have had some advice when she sent the text enquiring about redundancy in October 2022 but her recollection of this time was poor. She was certain that she got some information from the WRC in September 2023 and actual advice from Citizen’s Information in October 2023 and this was when she discovered the existence of the Form RP77 which was served in October 2023.

When she did complete the form, all that was required for her do so was to tick the box which had the following text next to it:

“The grounds of my dismissal constitute redundancy but I have not received Redundancy Form RP50 nor a lump sum payment. I request these.”

The form does not require a date of cessation nor, as can be seen from the above, does it require that a Form RP50 has been received for a claim to be made.

Accordingly, I cannot see how the Complainant could have been prevented from completing this form (as she eventually did) arising from the failure by the Respondent to provide her with written notification (whether by way of a Form RP50 or otherwise) and accordingly I find that that failure by the Respondent does not give rise to a reasonable cause for the failure on the part of the Complainant to make the claim within the time prescribed.

I would add that the Complainant did not even need to use a Form RP77 to make a written claim from the Respondent for redundancy, but that Form is clearly a state sponsored precedent which is designed for that purpose.

It is unclear whether the Complainant sought or obtained any advice at any time prior to October 2023. She was certain that she did indeed get advice in October 2023 and it is also clear that she delivered a Form RP77 at that time as well. Beyond that it is impossible to say what if any advice the Complainant got. I understood from her evidence that she had at least an understanding that she was entitled to redundancy in October 2022 which was only a few months after the dismissal and well before the 52-week period was due to expire. She could not recall whether she went to Citizen’s advice or whether she spoke to an accountant or whether she just did a google search but she did say that in October 2022 she took the view that she had a redundancy entitlement.

The Respondent’s submissions quoteed an extract from the information available on the Citizen’s advice website which reads as follows:

“…What to do if you have trouble getting your redundancy pay

Your employer should pay the redundancy lump sum to you when your employment ends. For example, this could be the last day of your notice period or on your next pay day.

Contact your employer if you don’t get your statutory redundancy pay when you are entitled to it. Do this in writing to make sure there is a record. You can apply to your employer using form RP77 (pdf).

You must apply to your employer for redundancy pay within one year from the date your employment ends.

If your employer cannot pay or they are insolvent, you can apply to get the payment from the Government under the Redundancy Payment Scheme…”

It must be observed that the above information and guidance is admirably clear and accurate and that if the suggestions made had been followed by the Complainant, then she would at very least have submitted a written claim for a redundancy payment within a year of the closure of the creche when her employment ended. As I have already indicated this would probably have been enough to ‘interpose’ the claim even if the WRC Complaint form had not been delivered on time. The Complainant also mentioned that she received information from the WRC. Whilst she could not say what that information was it is the case that information very similar to that posted by the Citizen’s information Bureau, as quoted above, is and was also available on the WRC website and retrievable within a very short time of commencing a search with any search engine.

A further detail was added by the Complainant when she said in her evidence that she “thought the time limit was two years”. She could not say how or when she came to this mistaken belief.

The Complainant’s Lack of Understanding of Procedures

The ultimate conclusion which I draw from all of the above is that the Complainant made a mistake for whatever reason in that she appears not to have fully understood the law and/or procedure applicable to her situation. It is a well-established principle of Irish Law that a person cannot rely on ignorance of the law and this principle has been applied to prevent persons relying on their ignorance of the law as reasonable grounds for failing to initiate an employment law claim within the relevant prescribed time limit. The principle has been refined somewhat in two decisions of the Labour Court issued in 2010.

In Craigfort Taverns Limited v. Hubacek DWT1049 the Labour Court held:

“In this case Complainant contends that he was unfamiliar with Irish legal procedure and that he operated on the assumption that the National Employment Rights Authority was the appropriate body with which to lodge his complaint. He acted without delay after his employment ended and corrected his mistake as soon as he became aware of his error. The Court is satisfied, that as the Complainant was a foreign national and could not be expected to understand the nature or detail of the process through which his rights could be vindicated and taking account the efforts he made to progress his case through the National Employment Rights Authority and the speed with which he corrected his mistake, reasonable cause has been shown and the time for the bringing of the within complaint should be extended to six months prior to the date of the termination of his employment.”

In Rezmerita Limited v Morkis DWT1017, The Labour Court held:

Normally, ignorance of ones legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time. However, there are special circumstances in this case and the Claimants are not relying solely on their ignorance of the law in advancing their applications. The Respondent was under a positive duty, under s.49(2) of the Industrial Relations Act 1946, to inform its employees of the content of the Employment Regulation Order governing their conditions of employment. This requirement has particular significance in the case non-Irish workers, such as the Claimants, who could not reasonably be expected to understand the nature or detail of their statutory entitlements or the process through which they can be vindicated.

The decisive criterion in considering an application to extend time is that of reasonableness. Having regard to all the circumstance of the case the Court is satisfied that reasonable cause has been shown and the time for the bringing of the within complaints should be extended to the dates on which the Claimants commenced their employment with the Respondent.

These two cases constitute exceptions to the principle that “ignorance of one’s legal rights… cannot provide a justifiable excuse for a failure to bring a claim in time”.  In both cases the findings make clear that the particular employees involved could not reasonably have been expected to understand the process necessary to pursue their claims. The findings are not authority for the proposition that any non-Irish worker can plead ignorance of the law or for that matter that no Irish worker can do so. Rather the outcomes of the cases are primarily based on the reduced capacity of the individuals concerned to understand the relevant law and legal processes. In the present case the Complainant no issues arose as regards the Complainant’s ability to read and understand English which is her native language nor were there any other issues as to her general capacity.  Moreover, the information which she needed to avoid the mistakes that she made is freely available, and what she needed to do did not require anything more than a relatively straightforward written communication to the Respondent. It is for this reason that I must find that she does not come within the exceptions to the rule that these decisions have laid down. In summary, I cannot find that this Complainant can rely on ignorance or misunderstanding of the law and processes applicable to her redundancy claim and thus any such ignorance or misunderstanding (if such there were) cannot give rise to reasonable cause for the making of this claim beyond the normal limitation period.

Whether the Conduct of the Respondent Gives Rise to Reasonable Cause

The Complainant contended that “all attempts to contact past employer were unsuccessful”, that she. “was told initially was not entitled to any redundancy” and she relied on the decision in A Deli Assistant -v- a Sandwich Shop ADJ-00027111

The thrust of these arguments was to infer that the conduct of the Respondent gave rise to reasonable cause for the failure to make the claim on time. Apart from the written submission and the case cited, the Complainant also gave her evidence and clarified the submissions to an extent.   When asked why she did not pursue the claim for a redundancy payment with the Respondent for more than a year. her response had several components. She didn’t want to pester the Respondent. She denied that the Respondent ever told her that she (the Respondent) could not pay the redundancy and that the Complainant would have to apply for redundancy. She said that she was in touch with a colleague who was “getting nowhere” with the Respondent on the exact same issue – that of redundancy payments. She said she had her own things going on. As to whether she was suggesting that the failure to put the claim in on time was the Respondent’s responsibility the Complainant contended that it was because they were friends, and the Complainant thought that the Respondent would contact her accountant and give us (meaning her and that colleague) “some sort of indications where we stood”. 

Applicable Case-Law

In Alert One Security Limited v. Khan DWT1572, (decided in 2015) the Labour Court was asked to extend time under a different piece of legislation, but which used the same “reasonable cause” for extending time as applies in the present case. In the Alert One case, the Complainant (a non-Irish national) gave uncontroverted evidence to the effect that during his employment he repeatedly sought his entitlements and was given assurances by his then employer in reliance on which he did not make his claim within the prescribed time-limit.

The following extract sets out the facts and the finding made:

“The Claimant told the Court that he had asked the Respondent on a number of occasions over the currency of his employment if he intended to pay him in respect of holidays. The Respondent assured him on a number of occasions that he would receive what he was due. The Claimant told the Court that he accepted the assurances that he was given in that regard. As he put it, “he took the Respondent’s word” that he would receive his entitlements.

…On the uncontested evidence of the Claimant, the Respondent misrepresented to him that he was either receiving his lawful entitlements or that he would receive those entitlements. The Claimant accepted his employer’s assurances in that regard and it is understandable, having regard to the circumstances of the Claimant, that he would have done so. It was only when the Claimant’s employment came to an end without having his entitlements met that he realised that that he had been misled. The Claimant told the Court that he became aware of the Citizens Information Service and having consulted that body he was advised as to how he could bring a claim under the Act. Having received that advice, he acted promptly in initiating his claim.”

Based on the foregoing facts the Labour Court found that the misrepresentations made by the Employer to the employee constituted reasonable cause and the time was extended.

“In general, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to those rights, cannot be accepted as excusing a failure to comply with a statutory time limit. In the instant case the Claimant is not relying on ignorance of the law, per se. Rather, as the Court understands it, he is relying on the combined effect of his lack of knowledge of how to process a claim and on the assurances given to him by the Respondent that he was either receiving his legal entitlements or that those entitlements would be met by the Respondent. In that regard it is well settled that material misrepresentation by a party, which caused or contributed to a delay in initiating a claim can constitute reasonable cause which both explains the delay and provides a justifiable excuse for that delay.

In all the circumstances the Court is satisfied that the Respondent’s misrepresentations to the Claimant constitute reasonable cause for the delay in presenting the within claims. “

Although the above decision notes that the employee had a “lack of knowledge”, the actual basis on which it turns (its ratio decidendi) is derived from the factual finding that the employer made misrepresentations on which the Complainant relied, and because of this reliance he did not institute his claim within the prescribed timeframe.

As regards the case cited by the Complainant, namely A Deli Assistant -v- a Sandwich Shop ADJ-00027111, this is a decision of a WRC adjudication officer (as distinct from the Labour Court) which was issued in 2021. As it happens the facts were quite similar to the Alert One case and the reasoning of the finding is also similar. In the Deli Assistant case the Complainant received notification of redundancy prior to the termination of her employment. She submitted a Form RP77 within about nine weeks of the date of termination, but her WRC complaint form was not submitted until 60 weeks after the termination date. The Respondent did not appear, and the claim was uncontested. The Complainant’s evidence was that she received eight successive communications from the Respondent after the termination date and running up to the time when she lodged her WRC complaint form, which “reassured her that the redundancy payment was being progressed” and she did not progress her claim sooner (i.e. within the standard 52-week period) because “she was reassured her redundancy payments would be met”. The Complainant appears to have adduced sufficient evidence to establish what seems to have been interpreted as a reasonable belief that she would receive a redundancy payment and that in reliance on this belief she did not make her claim within the initial twelve-month period. The finding was that there was reasonable cause for her delay in submitting the claim to the WRC due to the Complainant’s belief that the Respondent was going to make this payment.

The facts of the above case differ from the present case in that in the Deli Assistant there were repeated assurances given to the Complainant. I also note from the decision that in Deli Assistant case that a Form RP77 was submitted within just over two months of the dismissal. Arguably the service of that form RP77 itself may have had the effect of stopping the time in that case but it does not appear that the point was argued by the Complainant who was unrepresented. In any event this issue does not arise in the present case as the Complainant’s claim, whether it is deemed initiated by the RP77 or the WRC Complaint form, was initiated beyond the 52-week period from the date of dismissal. 

In the present case Complainant contended that all attempts to contact the Respondent failed. I must reject this argument based on the evidence. The Complainant accepted that following the text exchange in October 2022 she herself made no further effort to contact the Complainant until September 2023 at the earliest. Even that contact was disputed, and I have already found that it is in any event immaterial since it was beyond the 52-week period following the termination of employment.

There is a record of text exchanges between the parties in October 2022 when the 52-week period had not expired. For completeness these texts are quoted in full, exactly as written, as follows:

22nd of October 2022.

Complainant:    “Hi Edel I need a letter from you to say I was on carers leave and no longer receiving wages from you. I can write it if you want and sign your name if you don’t mind. Also are we entitled to any redundancy or anything. Sorry for all the questions”

Respondent:      “Is the letter from June [2022] not enough? And as u left employment there is no redundancy.” 

Complainant:    “Don’t worry I’ll sort something out. I didn’t leave employment I took carers leave. Just need info for accountants”

Respondent:      “Not sure I understand this at all. Maybe if u want we should have a quick coffee and u can explain to me. It’s just not coming clear across on text.

The next and last message in the stream came from the Complainant on the 26th of October 2022 stating as follows

Complainant:    “Hi Edel hope all well with you. Yes can we meet up for a quick coffee about this as my accountants has informed me that even though I’m on carers leave, I am still entitled to redundancy. Talk soon.”

Although a coffee meeting was suggested, in fact this never took place but the Complainant did not allege that the Respondent avoided this coffee meeting. If simply didn’t happen. Accordingly, I find that the allegation that “all attempts to contact past employer were unsuccessful” is not well-founded.

As to whether these communications evidence a representation or misrepresentation of any sort on the part of the Respondent, I find on a plain reading of the above texts that they do not. The Complainant was correct when she alleged that the Respondent told her that she was not entitled to redundancy. However, the Respondent in her evidence stated that this was the advice which she had received from her accountant. For her part the Complainant refers to “my accountants” (sic) which indicates on the face of the text that she too had sought advice from an accountant.

Both parties appear to have sought and obtained advice from accountants but neither appears to have obtained legal advice. Insofar as the Complainant seeks to suggest or imply that the Respondent’s statement that the Complainant had left and was not entitled to redundancy was a misrepresentation, I find that it was not such but was more in the nature of the Respondent setting out her position regarding the Complainant’s status. The fact that I have found, following a full hearing and legal argument that this was not a correct assessment does not retrospectively elevate the Respondent’s statement to the status of a misstatement. Even if it did, it is very clear that the Complainant had contrary advice or at least a contrary opinion and this being so she did not explain why she did not immediately issue a written claim following this exchange, when it became clear that the Respondent did not accept any liability to make a redundancy payment. There is no evidence that the Complainant relied on this statement to her detriment. A further observation would be that the Complainant’s own statements that she was on carer’s leave were in fact incorrect which only became clear in the course of evidence at the hearing.  

My conclusion on this communication based on a plain reading of the text and the evidence of the two parties is that there is no basis to suggest that the Complainant’s mistakes were caused or contributed to by any form of misrepresentation on the part of the Respondent. If the Complainant did rely on the Respondent’s statement that she was not entitled to redundancy, I find that it was not reasonable for her to do so as she had the option then and there to make a written claim for redundancy.

A further issue arose as to whether the Respondent, as she claimed had specifically advised the Complainant that she, the Respondent could not pay the redundancy and that she would have to make a claim for the payment herself. The Complainant denied that the Respondent ever said this to her. Having considered this issue carefully I have decided that instead of making a ruling as to what was said, I will proceed as if the statement were not made. Thus, assuming that the Complainant was not made aware of the Respondent’s inability to pay redundancy this does not in any way change the situation from the Complainant’s point of view in that the redundancy payment was not being volunteered by the Respondent and this being the case, the Complainant had but a single option and that was to make a written claim to the Respondent. This she did not do for reasons which, from the evidence, were never entirely clear.  What is clear is that the failure to act cannot be attributed in any way to the conduct, including, acts, omissions, statements or misstatements by the Respondent.

In her evidence the Complainant reduced her argument to the proposition that she had an expectation that the Respondent would provide herself and another colleague with: “some sort of indications where we stood”.  Although in the circumstances such an expectation is understandable to an extent, I find that the Respondent cannot reasonably be deemed to have created or encouraged any such expectation, nor do I find that the Complainant’s apparent reliance upon it can constitute “reasonable cause” for failing to claim her redundancy payment within the 52-week period following the termination of her employment.

For the reasons outlined above, I must find that the Complainant’s claim is out of time as reasonable cause has not been established for the failure to make the claim on time.

Given the manner described above in relation to the description of the present process as an “appeal” against the refusal or failure on the part of the employer to pay the claimed redundancy the order which I will make is that the Complainant’s appeal is not upheld.

The Complainant’s appeal is disallowed

Key Words – Redundancy – Redundancy Payments Acts 1967-2022 – Sections (7) (2),  (9), 17, 18, (24)(1) (b), (24) (2A), - Time Limit – “Reasonable cause” for delay – Conduct of employer – Failure to Notify of Redundancy - Egan v Tallaght University Hospital ADJ-00046177 - Cementation Skanska (formerly Kvaerner Cementation) v. Carroll DWT0338 - O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 - A Deli Assistant -v- a Sandwich Shop ADJ-00027111 – RP77 -  RP 50 -  Serdang Ltd v Sowinski RPD 2/2023 - Craigfort Taverns Limited v. Hubacek DWT1049 - Craigfort Taverns Limited v. Hubacek DWT1049 - Alert One Security Limited v. Khan DWT1572