Complainant

Respondent

Parties

Michael Joseph  Murphy

Sterling Pharma Ringaskiddy Ltd (amended at hearing on consent)

Representatives

 Appeared In Person

Sophie Crosbie, Regional Manager IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00052421-001

25/08/2022

This complaint was first received by the WRC on 25 August 2022. The Complainant is a retired Plant Operator at a Pharma Industry.

The WRC worked with the complainant to point out a number of incomplete entries on the initial complaint form before forwarding the complaint with amendments to the respondent on 23 March 2023.

On 8 March 2023, the WRC had notified the Complainant of an issue of compliance with statutory time limits.

An Adjudication Officer may not entertain a complaint/dispute if it has been presented after the expiration of the period of 24 months beginning on the date of the contravention to which the complaint relates. The time limits for complaints under the Redundancy Act 1967 are specified in section 24 (2A) of that Act. The Act states : “24(2A) 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 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”

 It would appear from the information submitted by you that this complaint/dispute was not presented within 104 weeks.

The Respondent representative, IBEC came on record on 2 May 2023.

On 22 November 2022, I wrote to both parties seeking outline submissions in the case.

Both parties made written submissions to hearing.

On the day of hearing, Ms. Crosbie, the Respondent representative advised of the company change of legal title and this was amended from Novartis Ringaskiddy ltd to Sterling  Pharma Ringaskiddy ltd         on consent.

Both witnesses at hearing gave evidence under oath.

The Complainant lodged a complaint under the Redundancy Payments Act 1967 on 25 August 2023. The Complainant comes to hearing as a lay litigant with a particular respect and deference for the interest the WRC has taken in his case. He is a litigant in person.

The complaint surrounds the circumstances of a payment received by the complainant on his voluntary redundancy in December 2014.

He had worked as a Plant Operator from 27 October 1992 to 12 December 2014. He is now retired.

The issue at the heart of the case is the complainant’s contention that his former employer used the “incorrect procedure in calculating my final payment “He submitted that shortly before his voluntary exit, he was informed that “due to an error “he would now receive €11,000 less than previous figures provided.

This scenario arose from a shift in the matrix of calculation from 3/80 th method to that of nett present value (npv) uplifted scale value. This was a variance in the assurance given by the company to “use the most beneficial tax exemption available to you “

This distinction only came to light via a parallel redundancy process at the company during 2020.

The Complainant sought a payment in rectification of the deficiency in payment.

Evidence of the Complainant (oath)

The complainant listened to the Respondent opening remarks on the frailty in his case through compromised time limits. He accepted that he was in difficulty on the statutory time limits but added with spirit that he had come to open his case and ventilate his issues at hearing. He added that everybody he asked directed him to the WRC.

The complainant outlined the circumstances of the voluntary exit at the company. He maintained that due to a last minute changes the redundancy package he agreed was left short by €11,000. He had been notified of this change by the HR Manager, who is longer with the company.

He was unaware of a change in methods of calculation during the exit process in 2014, outside of a reduction in the composite sum on exit at €11,000. He confirmed the composite exit payment amount. He submitted that had the 3/80th calculation been applied as anticipated, this would have raised his standard capital superannuation benefit (SCSB)

It was some years later that he learned that a separate group of staff made redundant in 2020 had different calculations applied to their exit package.

He followed this variance up with the company but was unable to resolve the dispute. He followed up with the external company who were the architects of the redundancy and the political field. the matter remains unresolved.

The complainant exhibited an email from the company dated 22 August 2022, which stood over the exit payment.

“… I can also confirm that your statutory redundancy was correctly calculated and therefore there is no requirement to file any amendments “

The complainant did not recall if he had submitted an RP 50 form.

He concluded that he was unclear on whether the lump sum payable on statutory redundancy was included in his payment on exit.

During cross examination, he confirmed that he agreed that his severance pay had included statutory redundancy and accepted that his was a voluntary exit from the company.

When Ms Crosbie put to the complainant that the respondent outsourced the administrative detail of the exit package, he replied that he accepted that the Outsourced company had authority over the exit package but added that they were not paid by him.

He did not recall receiving a statement from this company.

When asked to outline what had occurred in March 2019? The complainant confirmed that he learned that the sales team were made redundant and 3/80th calculation was applied to their exit package.

When requested to outline how that helped this case, the complainant responded that while not an accountant, he was aware that the 3/80th calculation would have favoured him on exit.

I probed the complainant if he had queried the notification of the €11,000 anticipated deficiency at the point of origin, that was a week before his exit in December 2014?

He replied that he felt a certain vulnerability in that regard as ultimately, he viewed the exit package as a “gift “and a query so close to exit may have jeopardised the gift causing him to have to extend his tenure.

In closing the Complainant reiterated that the calculation of the ex-gratia payment on exit in December 2014 had been miscalculated which caused him a loss of income he had expected to receive up to one week before his departure.

The Respondent operates a Pharma Company and has disputed the claim made by the complainant. It is common case that the complainant was employed at the Plant as a Plant Operator from 27 October 1992 to his date of termination through voluntary redundancy on 12 December 2014.

At this time, the complainant availed of a redundancy agreement and entered into a full and final settlement with the Company.

Ms Crosbie, for the Respondent outlined that the complainant received an exit package inclusive of his statutory redundancy entitlement.

She submitted that as the statutory redundancy had been paid in full and stood uncontested until 2023, then an Adjudicator was limited in law in accordance with the Redundancy Payments Act, 1967.

The full payment in voluntary redundancy was a composite of

1 statutory redundancy payment

2 extra ex-gratia payment

And incorporated settlement of all claims under the Redundancy Payment Act 1967 to 2007.

The complainant had an opportunity to seek legal advice prior to signing the agreement.

The respondent sought that the claim be dismissed as first having strayed outside the statutory time limits of 52 weeks to 11 December 2015 or by extension on reasonable cause to   11 December 2016.

 Secondly that as

“The WRCs’ authority derives from statute; it has no legal jurisdiction to enquire into and make decisions on issues of taxation arising from the implementation of a termination agreement “

Evidence of Ms Leanne Mansworth, Human Resources (by oath )

Ms Mansworth explained the composition of the Document described as Severance Agreement between the parties dated 12 December 2014.

She submitted that the lump sum paid to the complainant in statutory redundancy, having regard for the criteria was €27, 168. The exit package was a much higher amount in total. Figures were shared at hearing.

Ms Mansworth submitted that the redundancies which flowed from March 2019 did not have a different calculation applied in either statutory or ex gratia components.

The Company who managed the redundancies on an outsourced basis were clear in their interactions with staff.

In clarifications, Ms Mansworth confirmed that it had not been possible to delineate the statutory from the ex-gratia payment for the complainant as recipient of the exit package.

In closing, the respondent confirmed that they would re submit the severance agreement for clarity purposes. I am grateful for the prompt submission.

Ms Crosbie re-iterated that the claim was manifestly out of time. The Complainant had signed his agreement in full and final settlement of all claims.

There was no deficiency in the statutory redundancy payment and therefore as the sole claim examinable by the WRC, the case could not reasonably proceed.

The issue before the hearing arose from a dissatisfaction in the ex-gratia calculation and this is not open to scrutiny by the Redundancy Payments Act.

In support of the Respondent reliance on the argument on expiration of the statutory time limits, the respondent relied on Section 24(2) (a) of the Redundancy Payments Act, 1967.

I have been requested to inquire into this claim and decide the claim raised by the Complainant from August 2022.

The Respondent has disputed the claim at preliminary and substantive stages.

In reaching my decision, I have had regard for the oral and written submissions of the parties in addition to the evidence adduced at hearing.

My first instinct at this juncture is to offer my feedback to both parties and to remind them both of the wonderful opportunity that surrounds a voluntary exit package. For some recipients, it serves as a valuable bridging period in life between jobs, for others it serves as a consolidation of a working life and can serve as a realisation of dreams.

A brief diversion, if I can be permitted brings me to the WB Yeats poem:

He wishes for the Cloths of Heaven and:

“… I have spread my dreams under your feet. Tread softly because you tread on my dreams “

My point being that I agree with the complainant’s analysis when he viewed the voluntary exit package prompted by redundancy as a gift. However, that is not the full story and deeply embedded in that exit package was a calculation of statutory redundancy, where rules of application apply.

I will state at the very outset that it is my firm opinion as I discussed with the parties at hearing, that had the components of the exit package been delineated in a document attached to the severance agreement to table amounts paid for

Notice

Statutory Redundancy

Ex gratia exit payment.

Termination pay, wages, annual leave etc.

It may have crystallised the parameters of the instant claim for both parties much sooner.

It is not lost on me that the complainant has invested a considerable period of his retirement chasing a resolution in this issue . For him, I accept it is unfinished business as he challenged his perception of inequitable treatment . It may also have served to informed the external agencies who advised on directing this case to the WRC.

For the company , I appreciate and understand that the company outsourced the administrative components of the exit package in which they expressed full confidence .

I would have liked to have seen a more cohesive partnership at play between the company and the partner contractor . After all, the news of the diminished amount was attributed to the company’s human resource manager, no longer at the business.

I write the above as observations in obiter (incidental remark). However , I hope the parties can appreciate that I have identified a missed opportunity in how the amounts paid as an exit package were broken down.

I am satisfied that such an explanatory document was not in being in December 2014 .

Preliminary Issue : Statutory Time Limits

The Respondent has raised the preliminary issue that the Adjudicator lacks jurisdiction on which to decide in this case .

Ironically, the Complainant accepts that he is out of time and countered that he simply wished to place his case where it would be heard. For him, all roads have led to the WRC.

I will take a brief moment to outline my jurisdiction as I see it in this case as the Redundancy Payments Act, 1967 provides.

The Heading of the Act is illuminating in that regard.

An  Act to provide for the making by employers of payments to employees in respect of redundancy, to establish a redundancy fund and to require employers and employees to pay contributions towards that fund, to provide for payments to be made out of that fund to employers and employees, to provide financial assistance to certain unemployed persons changing residence, and to provide for other matters (including offences) connected with the matters aforesaid. [18th December 1967.]

I am satisfied that the complainant is an employee for the purposes of the Acts definition of same.

“employee” means a person of 16 years and upwards who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, [the Health Service Executive], or [education and training board] shall be deemed to be an employee employed by the authority, [Executive] or [education and training board], as the case may be;

I am satisfied that the Respondent is an employer for the purposes of the Acts definition of same.

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of contract of employment is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;] […] […]

“employee” : this definition was substituted by s.3 of the Redundancy Payments Act 2003 and then amended by s.66 of the Health Act 2004 and by s.72 of the Education and Training Boards Act 2013.

“employer”: this definition was substituted by s.3 of the Redundancy Payments Act 2003.

Section 7 of the Redundancy Payments Act, 1967 provides details for a statutory redundancy payment and the circumstances on which a redundancy can unfold in the workplace.

Redundancy by its very essence is built around impersonality and change.

St Ledger v Frontline Distribution Ireland Ltd (1995)

General right to redundancy payment.

7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

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

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

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

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

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

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

Where the confusion in this case may well have risen is that historically an RP 50 was a material document to aide payment of statutory redundancy as employers applied for a tax rebate, now extinct from January 2013. I found it unusual that the RP 50 clause at clause 3.5 was so incorporated in the severance agreement of December 2014.

I accept that the complainant had no recollection of filling such a document.

This brings me to my response to the respondent submission that the claim is manifestly out of time.

Time-limit on claims for redundancy payment.

24.—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—

(a) the payment has been agreed and paid, or

(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.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) 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 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.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director Generalat his discretion considers reasonable having regard to all the circumstances.

Both parties accept that the complainant received his correctly calculated lump sum payment in statutory redundancy as part of his exit package in December 2014, the date of dismissal.

Both parties accept that the dispute in this case centres on the ex-gratia payment on exit.

I have no jurisdiction no examine the ex-gratia aspect of the exit package.

I did explore the relevance if any that section 24(3) may have had in this case. I am satisfied that it has no relevance.

I must award this preliminary issue to the Respondent.

The Complainant in lodging his claim on 25 August 2023 is manifestly out of time, which cannot be saved by Section 24(3) of the Act.

This claim is manifestly out of time, and I lack jurisdiction to take the case any further.

The claim is not well founded.

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

The claim is manifestly out of time. I lack the jurisdiction to decide on the substantive case.

The claim is not well founded.