Complainant

Respondent

Parties

Seamus  Roche

Cartamundi Ireland Ltd

Representatives

  In person

 Jacob and Twomey Solicitors

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-00058232-001

11/08/2023

The complainant was employed by the respondent in 1980. In 1990 due to an occupational injury the complainant did not return to work and has not returned to work since that time. The within complaint which was submitted to the Workplace Relations Commission (WRC) on 11th August 2023 relates to a claim for redundancy in circumstances where the complainant contends that he remained in the employment of the respondent until its closure in August 2023.

The complainant is seeking his redundancy entitlements. The complainant represented himself at the adjudication hearing and presented his complaint by way of verbal submission and by reference to accompanying documentation.

The complainant contends that he remained in the employment of the respondent until August 2023 and that this was confirmed to him in correspondence from the Revenue Commissioners dated 14th February 2024 where the cessation date of his employment was confirmed as 4th August 2023.

The complainant outlined that he received an occupational injury in 1990 and has been absent from work since then. The complainant outlined that he continued to receive public holiday entitlements until 2023 and never received formal notification that his employment had ended. The complainant also stated that he never received a P45. The complainant stated that when he did receive a letter confirming notice of termination in 2006, he was subsequently informed that matters would continue as they had since his absence began and that he would be paid for the public holidays that had been denied to him. This, in the complainant’s view confirmed his understanding that he has remained in the employment between 1980 and the respondent’s closure in August 2023.

The respondent refutes the complainant’s position that he remained in the employment until 2023. The respondent’s position is that the complainant has not been at work since 1991 and his employment ended at the latest in 2006 which was clarified to him in writing at the time. The respondent pointed out that the complainant did not submit medical certificates in relation to his claimed sick leave absence during the period in question.

The respondent confirmed that there was no contact from the complainant for many years and the payment of the public holiday entitlements continued to be paid to him since his employment ended in error. The respondent stated that the announcement of the company closure in March 2023 prompted the complainant to make contact and seek his redundancy entitlements.

In relation to the complainant’s termination date, the respondent argued that the complainant was absent on sick leave following his occupational injury in 1990 and that this resulted in a personal injuries action that was settled in 1994. Although the respondent had no record of the terms of the settlement given the passage of time, it was its understanding that the complainant received a significant sum of money and the payment of his legal fees. It is the respondent’s position that the employment relationship ended at that point as it was confirmed that the complainant would never be in a position to return to work.

In 1999, an actuarial evaluation resulted in a contribution of approximately €7,830 being paid into the complainant’s pension fund which was to ensure that the complainant would suffer no loss at pension age in relation to his pension entitlements when they become due. The respondent stated that if the complainant’s employment did not end in 1994 with the settlement agreement, it certainly ended in 1999 with the final payment being made in respect of the complainant’s future pension entitlements.

Notwithstanding its position in relation to the earlier dates of termination, the respondent outlined that the HR Manager at the time noticed the error that the complainant remained on the list of employees as of 2006 and wrote to the complainant on 24th August 2006 confirming that his employment would end eight weeks later on 19th October 2006. The respondent contends that this was the very latest that the complainant could have been regarded as being in the employment of the respondent. On that basis, the respondent contends that the complaint is out of time as it has not been referred until approximately 17 years later which is outside of the time limits prescribed by the legislation.

In respect of the document from the Revenue Commissioners that the employment continued until 4th August 2023, the respondent’s position was that this document simply recorded the fact that payments continued until 2023 which arose as a result of the error outlined by the respondent vis a vis the continued payment of public holiday entitlements until 2023. The respondent’s view was that this did not change the position that the employment ended at least 17 years in 2006 and possibly as far back as 1994.

The within complaint relates to the complainant’s assertion that he is entitled to a redundancy lump sum following the closure of the respondent’s business in August 2023.

The facts of the compliant are not in dispute. The complainant has not worked in the employment for more than 30 years due to an occupational injury in 1990. The HR Manager who was present at the adjudication hearing had retired a number of years earlier and due to the passage of time did not have a clear memory of the issue. Due to issues relating to Data Protection and GDPR there are no additional records available other than the documentation submitted by the parties in their submissions.

As clarified to the parties at the adjudication hearing, the time limit for submitting a complaint seeking redundancy entitlements is 12 months from the date of the termination of employment. This time limit can be extended by a further 12 months if reasonable cause can be shown for the delay in submitting the complaint.

The complaint was submitted to the WRC on 11th August 2023. The only date of termination that could result in the complaint being in time relates to the document from the Revenue Commissioners that states that the employment ended in August 2023. This termination date was because of the erroneous payments to the complainant of public holiday entitlements to the complainant which, on the face of it, seems to suggest that the complainant received 9 days pay per year in error for a significant number of years. The respondent noted that this was never brought to its attention by the complainant over the years and that there was no other contact with him until the closure of the business was announced in early 2023 which prompted him to query his redundancy entitlements.

Conclusions

I have given careful consideration to the submissions of both parties to this compliant. In my view, the complainant’s employment ceased to be an employee of the company many years ago. While there may be some uncertainty relating to the end of the employment in 1994 and 1999 following the completion of the personal injuries action and the final payment to the pension scheme in relation to the complainant’s pension entitlements at retirement age, there can be no doubt that the complainant was informed in August and September 2006 that his employment would end in October 2006. The respondent’s letter to the complainant is clear and unambiguous in that regard. The unfortunate error that occurred leading to the continued payment of public holiday entitlements to the complainant for such a long period of time does not, in my view, maintain the employment relationship and the fact that the complainant did not receive a P45 is also not determinative of the matter. I also note that in the intervening years, there were no medical certificates furnished to the employer which would have been required had the complainant remained in employment.  In all of the circumstances of the complaint, I find on balance that the employment ended in 2006 and the redundancy complaint submitted in 2023 is outside of the time limited prescribed by Section24 of the Redundancy Payments Act, 1967. Accordingly, I find that the complaint is out of time.

For the reasons stated above, I find that the complaint is out of time and is therefore statute barred.

Redundancy complaint, out of time, statute barred