Complainant

Respondent

Parties

Margaret  Kearns

Corrigkids Playschool

Representatives

  Self

Dominic Wilkinson BL 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-00059538-001

21/10/2023

The Complainant was employed by the Respondent as Childcare Assistant from the 1st of September 2017 until her employment ended on the 2th 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 title for the Respondent is Edel Graham trading as Corrigkids Playschool

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 worked for Corrigkids from September 2017 to June 2022.I had no warning of closure and I was informed on doorstep of my house. A letter was sent an hour later by text to the Parent group on Whatsapp.I contacted Edel by phone enquiring about redundancy and she said she would look into it. No word from her for a few months. No Rp50 form was given. I contacted her again asking for her accountant’s number. I was told she would look into it herself. Got a text in October 23 forwarded from her accountant. stating that at the time i was advised (of which I was not) that Edel could not my redundancy. I was then told to contact Social protection (of which I was not told at the time) to apply for my redundancy but might not get it as a year had past. None of this was advised to me at any stage.”

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

Commencing the 22nd of August 2022 – I went down to help the respondent clean up the office to get ready for the opening of the of the Playschool for the year 2022/2023. The respondent spoke about not finding a replacement but never mentioned that she had to close the Playschool.

22nd of August – the respondent called me at my house and met me at the clothesline. She told me that she was closing the Playschool but was thinking about opening for a month to give the parents a chance to find an alternative place for their child. The respondent did not issue me with a letter confirming this. An hour later a text was sent on the Corrig kids parent group about her intention to close the business for the year 22/23.

September October 2022- I did not meet up with the respondent at any time. I received an apple tart on the doorstep but never met her in person. I rang her and spoke to her on the phone asking about my stamps as I didn’t have enough to claim for jobseekers. There was no mention of redundancy and not being able to pay it. Nor was there any advice given to me to apply to the state.

First week of September 23 – I contacted the respondent about the RP 50 form, and she said she would contact her accountant.

11th of September – I contacted the respondent by text about any update and she responded on the 12th of September 23 that she was awaiting information from her accountant.

29th of September – the respondent forwarded me on an email from her accountant by text message. It stated that I was told before that the respondent could not pay my redundancy and I was told to reply to the state. This never was mentioned to me before. The email went on to say that I was entitled to redundancy, but it was too late.

Friday, the 6th of October 23 – I signed an RP 77th form and the box with the following “the grounds of my dismissal constitute redundancy but I have not received redundancy form RP 50, nor lump sum payment. I request these”.

18th of October 23 I sent in the WRC complaint form.

In conclusion I felt that I had contacted my employer on numerous occasions to ask about my redundancy. I felt that as an employee and a friend that the respondent in good faith would have contacted me in some way. I was not given an official date of termination of employment at any time, only the letter by text to the parents group.

I did reach out to my employer on numerous occasions enquiring about redundancy, but nothing was ever done about it. I was always told that I was advised to apply to the state, but this Conversation never occurred.

So, to summarise the following points led to the reason I failed to submit a claim within 52 weeks

-No notice in writing and no official date.

-No RP 50 redundancy form was received by employer.

-I contacted the respondent on numerous occasions but felt I was not getting anywhere.

-Was not told any time that the respondent could not pay my redundancy and that I had to reply [sic.] to the state.”

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 the Childcare Act 1991 which 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 2017 – The Complainant commenced employment with the Respondent as a Early Years Practitioner. The Complainant was paid a gross weekly wage of €175 per week.

13 April 2022 – An employee of the Respondent, a Miss Pauline Shaugnessy advised Ms Edel Graham that she wished to take Carer’s Leave.

April to June 2022 - Ms Graham spoke with both Miss Shaughnessy and the Complainant and advised them that if she did not find a replacement for Ms Shaughnessy 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 Ms Shaughnessy for the business to remain open.

30 June 2022 – On or about this date the Respondent’s business closed for the summer break and the Complainant went on a period of lay off for the summer. 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 Ms Shaughnessy.

Week commencing 22 August 2022 – Ms Graham spoke with the Complainant during this week and advised her of her concerns about the coming year and the options around staffing. The parties exchanged WhatsApp messages on 22 and 24 August 2022 about meeting up.

27 August 2022 – Ms Graham called to the Complainant’s house and advised her that the decision had been made to close the business. It is respectfully submitted that Ms Graham advised the Complainant that she could not afford to pay the redundancy sum but that she would contact her accountant to about claiming off the state.

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.

28 August 2022 –Ms Graham sent the Complainant a WhatsApp message about the closure of the business and that she would contact her on Thursday of that week.

September to October 2022 – In or about this period of time Ms Graham met with the Complainant on 3 occasions. It is respectfully submitted that the Complainant advised Ms Graham that she had been advised by Citizen’s Advice that she did not have enough stamps paid to claim Redundancy and that she would leave it at that. It is respectfully submitted that Ms Graham advised the Complainant that she needed to make a claim to the State for redundancy and advised that she would, if so required, sign any forms.

October 2022 – Ms Graham obtained employment on a part-time basis and advised the Complainant that there was also a role for her but she declined this opportunity.

9 November 2022 – The parties exchanged WhatsApp messages and Ms Graham referred to having information nearly sorted.

First week of September 2023 – The Complainant contacted Ms Graham and mentioned a form. Ms Graham advised that she would contact her Accountant.

11 September 2023 – The Complainant sent Ms Graham a WhatsApp message and asked for the accountants’ number and that she wished to sort things out. Ms Graham responded on 12 September advising that she was awaiting information from the Accountant.

29 September 2023 – Ms Graham received an email from her Accountant which she forwarded to the Complainant by text message.

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 issued her a letter 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 of this decision). 

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

“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 a claim was made to the Employer by notice in writing within 52 weeks beginning on the date of dismissal or the date of termination of employment. In circumstances where no such claim was made within 52 weeks beginning on the date of dismissal or the date of termination of employment the Complainant can make a claim by notice in writing 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 by notice in writing 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 where no such referral has been made within 52 weeks beginning on the date of dismissal or the date of termination of employment the Complainant can make a claim/ 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 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 ADJ-00046177 in the following terms:

[Quotation included in Findings Section of this Decision below] “

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

There is a single issue in the case: whether the Complainant’s claim was made in time.   

It was accepted that the Complainant delivered a Form RP77 to the Respondent between the 6th and 10th of October 2023 and a WRC Complaint Form to the WRC shortly thereafter on or about the 21st of October 2023.

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. 

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 RP 50 redundancy form was received by employer.

3.                   I contacted the respondent on numerous occasions but felt I was not getting anywhere.

4.                   Was not told any time that the respondent could not pay my redundancy and that I had to reply to the state.

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

Available Evidence

The following text communications between the parties are of relevance:

28th of August 2022

The Respondent sent a message to the Complainant which included:

“Hi Mag hope ur doing ok. I decided to make clean break and close completely….So as of today we are young free and unemployed.”

9th of November 2022

The Complainant sent a text to the Respondent saying

“Thanks for the tart it’s delicious”

A few minutes later the Respondent replied:

“Good. Nearly have information sorted. Will Be back to u soon. Just bear with me. “

The Complainant replied:

“That’s fine. Thanks Edel”

It was agreed that there were no further communications between the parties after the 9th of November 2022 until the 11th of September the following year, 2023. The latter communications in 2023  are not relevant to the consideration of the issue, as explained below.

As to the verbal communications between the parties It was agreed that the Respondent called to the Complainant’s house on the 27th of August 2024 to advise her that the creche was closing and this was also confirmed in writing in the text above and the WhatsApp communique on the 28th of August 2022.

There were no further communications between the parties until the Complainant contacted the Respondent again on the 11th of September the following year, 2023, and series of exchanges took place between them. These communications did not take place between the termination date and the 52-week period immediately following that date. The application to extend the time must logically establish a reasonable cause arising during that time which explains the failure to initiate the claim.  For this reason, I find that any communications which took place after that time cannot establish facts which arose before it. Accordingly, I will not consider any communications which fell outside of the 52-week commencing on the 26th of August 2022 when assessing the issue of reasonable cause for the delay in initiating the claim.

There was some divergence in the respective memories of the parties regarding whether there was one face-to-face meeting or several. However, there was general agreement that a series  of conversations between them occurred in September, October and November of 2022.  It is the content of those conversations rather than whether they were face-to-face or on the telephone, which is of relevance.

In her evidence the Respondent said that she recalled discussing the issue which the Complainant was having with her social welfare stamps, that she should query the decision that had been made. She also said that if Citizen’s Information had mentioned redundancy, she was not able to pay it and that she would have to claim it off the state and if she did so, she {the Respondent} would facilitate that by providing any information necessary and cooperating in any other way. She also told the Complainant that there was a certain form that the Complainant needed which she {the Complainant} could get from Citizen’s Advice or download from a website but that she, i.e. the Complainant needed to do that.  As regards the text exchange (quoted above) on the 9th of November 2022 and in particular the reference to “information”, the Respondent explained that what she was referring to was information which she was seeking from her accountant such as start dates, salary and any breaks in service, which she thought the Complainant would need if she was making a claim for redundancy.

The Complainant denied that the Respondent had at any stage said that she (the Respondent) could not pay redundancy but that she should apply to the state if she wanted to seek redundancy. She added that if the Respondent had said anything like this to her, she would have acted and submitted the necessary forms.

Although the Complainant denied that she was ever told by the Complainant that she (the Respondent) could not pay redundancy and that she (the Complainant) should apply to the state, the Complainant in her evidence did not indicate what it was that the Respondent did say to her. In her submission the Complainant under the date September-October 2022 stated

“I did not meet up with the respondent at any time. I received an apple tart on the doorstep but never met her in person. I rang her and spoke to her on the phone asking about my stamps as I didn’t have enough to claim for jobseekers. There was no mention of redundancy and not being able to pay it. Nor was there any advice given to me to apply to the state.”

Other evidence is discussed and analysed in the findings below. 

Applicable Law

Date of Dismissal

It was accepted that the Respondent’s creche closed on the 27th of August 2022. The Complainant accepted 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 arguably 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). However I do not have to rule on this issue as in the present case both the RP77 and the WRC Complaint form were served beyond the 52-week period following the date of termination. The RP77 is dated the 6th of October 2023 but was more likely not received by the Respondent until the 10th of October 2023; the WRC Complaint Form was received by the WRC on the 21st of October 2023. It is clear that both of these dates fall beyond the 52-week period prescribed by Section 24. 

Verbal Requests for Redundancy

Aside from the Form RP77 which was served after the 52-week period had expired, the Complainant contended that she “contacted the respondent on numerous occasions but felt I was not getting anywhere”.  In her evidence the Complainant said that she asked for her redundancy a number of time on the telephone between Sepptember and November of 2022. I find that enquiring about or asking about a redundancy does not and cannot constitute a “a claim for the payment by notice in writing given to the employer” as is required by Section 24 (1) paragraph (b).

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 RP 50 redundancy form was received by employer.
3. I contacted the respondent on numerous occasions but felt I was not getting anywhere.
4. Was not told any time that the respondent could not pay my redundancy and that I had to reply to the state.

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 and 2 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.

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.
2. 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 was 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 formal written notification of termination sent by the Respondent to the Complainant, yet the Complainant was nonetheless aware of the closure of the business. 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.

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.

Having found that the failure to notify the Complainant in writing of her redundancy, 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 November 2022. The Respondent argued that information on securing a redundancy payment is freely available online and/or advice can be obtained on the issue. 

The Respondent’s submissions quoted 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 Download link provided] .

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.

It is noteworthy that the RP77 Form itself contains an option which must be ticked when it is being completed. The wording which the Complainant ticked was:

“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 text of the form quoted) does it require that a Form RP50 has been received for a claim to be made. The form can be downloaded from a number of easily accessed websites and it is clear that the Complainant did get a blank form because she eventually completed it and sent it to the Respondent. Had she done son sooner which would have clarified that receipt of a Redundancy Form RP50 does not preclude making the claim. 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 precedent which is designed for that purpose.

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.

The Complainant’s Lack of Understanding of Procedures

The Complainant said that she “didn’t have clue” as to how to go about making a claim for a redundancy payment.  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

Referring back to the summary which the Complainant offered in her submission at point 4 together with the Deli Assistant case upon which she relied; the overall thrust of the Complainant’s submission was that the manner in which the Respondent dealt with the Complainant’s enquiries gave rise to reasonable cause. There are two separate but related aspects to this contention.

Firstly: the Complainant contended that she “Was not told any time that the respondent could not pay my redundancy and that I had to reply to the state”. The word “reply” appears to be a typographical error whare the word “apply” was intended.

Secondly: the Complainant contended that she understood that the Respondent was processing her redundancy claim for her. In this regard reliance was placed on the Deli Assistant case where an employer was given assurances by the employer and this fact was held to constitute reasonable cause.

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 (albeit for a shorter period), but which used a similar  “reasonable cause” wording as a precondition for the grant of an extension of 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. 

Findings

In her submission the Complainant made no mention of a conversation which occurred at around the time of the text exchange in November 2022. Her recollection of the way things were left in November 2022 was limited to saying that it was her assumption that the Respondent would process a redundancy claim for her.

It may well be the case that the Complainant conflated different communications as regards when they took place. I say this because some ten months after the text exchange in November 2022 there was further communication between the parties as evidenced by an exchange of texts from the 11th to the 20th of September 2023. I have already held that these communications cannot establish reasonable cause for failing to take action at a time before they took place, and for this reason I have excluded them from consideration. This leaves the communications which did take place within the 52-week period up to the last communication which were in November of 2022.

In cross examination the Complainant said that she knew that she was entitled to redundancy at the time her employment was terminated in August 2022. However, she said that she was unaware of the 52-week limitation period during this time. I have difficulty understanding how it came about that the Complainant knew she had a redundancy entitlement but did not know that there was a time limit applicable to making a claim. Moreover, insofar as the Complainant appears to have come to the understanding that the Respondent could, and in fact (she contended) had an obligation to process the claim for the Complainant, her evidence was unclear as to how she came to this understanding. Similarly, her evidence was unclear as to what advice she sought and obtained and when. It appears that she did approach Citizen’s Information Bureau and the Department of Social Protection probably in or around October of 2022. She thought that she may have been advised at that time of the existence of Form RP77 and she said that she sent this to the Respondent at that time. However, when the Form RP77 which she signed was shown to her she accepted that she sent it on or about the date when it was signed. The Form which she signed is dated the 6th of October 2023 not 2022 as she had originally thought. She was asked in cross examination, why it was that if she knew about the existence of a Form RP77 in October 2022, she did not send it until October 2023 a year later. She said that she did not know  why, that she may, in October 2022, have been more focussed on rectifying a social welfare problem which related to her “social welfare stamps”. She accepted that she should have sent the RP77 but she did not. The format and text of the RP77 form was put to the Complainant and she accepted that it did not require any detailed information regarding her employment other than her PPS Number and the name and address of her employer. This being so she was asked what further information she would have needed from the Respondent in November 2022 when the above texts were exchanged, and she said that she should have gone earlier but she didn’t have a clue. She “just assumed that [the Respondent] would look after it”. She did not say that the Respondent had actually told her that she was doing so, rather,  she took it for granted that she was. Although she didn’t follow up with the Respondent the Respondent did not make contact with her either.

I have considered the conflict of evidence very carefully and I do not have the impression that either party gave untruthful evidence. However, I find the Complainant’s evidence less clear and reliable. Her submission would suggest that the only conversation during that period was about the Complainant’s “stamps” (meaning the social welfare issue unrelated to the resent claim) and there was “no mention of redundancy”. Her written submission made no mention of conversations or the text exchanges in November 2022. Despite these omissions the Complainant maintained at the end of her written submission that she contacted the Respondent on numerous occasions to ask about her redundancy. She repeated this submission in her evidence, but she did not clearly identify when she asked for redundancy. 

From the evidence available to me, I find the Respondent’s evidence more coherent and reliable as to what was said between the parties between September and November of 2022, and I have difficulty understanding how there could have been no discussion about redundancy. What is clear from the evidence and I find as a fact, is that the Respondent did not agree to, offer to or give any assurances that she would: process, look after, take care of or handle a redundancy claim on behalf of the Complainant. Moreover, I do not find any evidence suggesting that it was reasonable for the Complainant to believe, or as she put it herself to “assume”, that the Respondent had done so. Even if the Complainant had a genuine belief that the Respondent was attending to her redundancy claim, and even if she did not know about the 52-week time limit or any time limit, it stands to reason that she would have been in further contact with the Complainant in the weeks or months following the last contact in November 2022. The Complainant in her evidence that she was worried about the issue, yet the only reason offered by for this apparent inertia was that the Respondent did not get back to her. However, there was nothing to prevent the Complainant following up with the Respondent and doing so with increased urgency if necessary. It must also be the case that in the long period during which the Complainant waited before she did follow up – during which the 52-week period had yet to expire – that the Complainant should have had reason to be sufficiently concerned to issue a straightforward written demand for redundancy. 

In all of the circumstances I do not find that the Complainant’s assumption that the Respondent was handling a redundancy claim for her was reasonable nor have any other circumstances been identified such as to provide a reasonable cause for the delay by the Complainant in submitting her claim for redundancy

For the reasons outlined above, I must find that the Complainant’s claim is out of 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 will be made is that the Complainant’s appeal is disallowed.

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