ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00043978

Parties:

Complaint:

Date of Adjudication Hearing:  14/11/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014  following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant seeks payment of statutory redundancy.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent from 23 October 2020 to 21 November 2022.           She was made redundant and as the Respondent was not in a position to pay the redundancy, an application was made to the Department of Social Protection.  Her application was rejected on the grounds that she had insufficient PRSI payments. 

She stated that her service was deemed to be continuous by the Respondent and they had filled the requisite form stating this.  She stated that while she had absences due to long covid, this should not have been considered as a break in service.  She submitted documents in support of her claim.  Some of these documents were issued by the Department of Social Protection and specifically stated that continuous service is based on time in employment including sick leave periods providing they do not exceed 26 weeks.  She contends that she has been wrongly denied her statutory redundancy entitlement.

Summary of Respondent’s Case:

The Respondent stated that this is a matter for the Department of Social Protection and the matter of jurisdiction and responsibility lies with the Department.  The Respondent agrees that it did complete forms for the Department stating there was no break in service in relation to the Complainant.  However, the Complainant simply did not have the requisite PRSI payments and did not qualify for redundancy.  The Respondent submitted the following:

The Respondent was not in a financial position to discharge statutory redundancy payments to eligible employees therefore, said employees were advised that applications for statutory redundancy payment would be made to the Department of Social Protection (hereinafter, “the Department”) on their behalf. 

An application was made to the Department under the ‘Statutory Redundancy Scheme’ in respect of the Complainant on 28 November 2022. 

The above referenced application was unsuccessful and the reason for the failure of same was due to the fact the Complainant did not have the requisite number of PRSI contributions. 

The Complainant was advised by the Respondent as to her right of appeal of the unsuccessful application and subsequently submitted an appeal. The appeal was also unsuccessful, and the reason provided was again due to the fact the Complainant simply did have the requisite number of PRSI contributions to qualify for statutory redundancy payment under the Statutory Redundancy Scheme.

The Complainant lodged a complaint to the Workplace Relations Commission under Section 39 of the Redundancy Payments Act 1967, on the 11 January 2023.  The Respondent denies the within complaint in full and it is respectfully submitted that the Complainant does not have the requisite PRSI contributions to qualify for the statutory redundancy payment.

The Respondent company has ceased operating since February 2023 therefore there is no appropriate or relevant party in existence to execute any possible award deemed appropriate by the Tribunal.

In or around the 29 August 2022, the Respondent held an initial meeting with its employees at this meeting, the possibility of redundancy was mooted.  On 29 August 2022, all employees were informed that their employment was ‘at risk’ due to financial pressures and furthermore, that the Respondent had no option but to consider the closure of the Nursing Home.

The Complainant was on sick leave and did not attend the meeting on the 29 August 2022.  The Respondent met with the Complainant on 1 September 2022, to update her on the events of the meeting of the 29 August 2022.  The Complainant was subsequently formally notified of redundancy on 25 October 2022.  Following notifications of redundancy to employees, the number of employees began and continued to be reduced in tandem with the reduction in the number of residents.  The designated final day of work for the Complainant was 21 November 2022.  The Respondent completed the relevant application Form under the Statutory Redundancy Scheme on behalf of the Complainant.  The completed form was furnished to the Complainant and signed by the Complainant on confirmation of her approval of same. The signed form was submitted to the Department on 28 November 2022.  The application was refused by way of letter from the Department. 

The Respondent submits that in the period from 22 March 2022 to 7 June 2022, there were periods of sick leave, two days of annual leave followed by a phased return to work.  The final day worked by the Complainant was 7 June 2022.  There was a continuous period of absence from 8 June 2022 until 21 November 2022 (24 weeks). 

It is submitted that while there is no dispute in respect of the Complainant’s service of employment with the Respondent, it was during this 6-month period that the Complainant did not continue to accrue the relevant PRSI contributions. No PRSI contributions were paid on behalf of the Complainant due to the fact no pay was available to the Complainant during this period and this because the company’s policy did not offer sick pay to employees.  In the absence of the Complainant’s own prerogative to apply for and avail of services and support from the Department of Social Protection.  It is submitted that it would be a matter for the Complainant or any employee to have claimed illness benefit, during their absence, while on sick leave should they be entitled to do so.  It is submitted that the Respondent had no power or role in the accrual of the PRSI contributions of the Complainant.  The Respondent further submits that the Complainant was advised of her position with respect to pay during this period. It was explained to the Complainant that she could make an application to the Department of Social Protection for support during this time.  The Complainant did not request any further information or support from the Respondent about pay or PRSI contributions throughout the approximate absence period.  It is submitted the decision issued by the Department refusing the Complainant’s application for Statutory Redundancy Payment under the within referenced scheme has dispensed the Respondent of the Complainant’s claim.  It is further submitted that the decision issued by the Department refusing the Complainant’s appeal in respect of the above referenced application, further dispenses the Respondent of the Complainant’s claim.  The Respondent phoned the Department who advised that the complainant had appealed the Departments decision and the appeal was refused on 5 January 2023. 

Finally, it is submitted, that in circumstances where it is determined that the Complainant is entitled to payment under the within referenced scheme, which is denied, the Respondent company is in the process of being wound up and there is no appropriate or relevant party available to execute any possible award deemed appropriate by the Tribunal.

LEGAL SUBMISSIONS: 

The payment of statutory redundancy is conditional as follows: -

REDUNDANCY PAYMENTS ACT 1967:

4.— (1) Subject to this section and to section 47, this Act applies to —

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005, (b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and (c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for —

(i) their attainment of that age, or

(ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act.’

(iii) the fact that the employment concerned is excepted employment. 

The Respondent relies on the case of Gormally v McCartin Brothers (Engineering) Ltd [1982] IRLM 215 which states: ‘It is commonplace for many five - day-week employees to have a day’s wages deducted in respect of an absent day, and such deduction is, in our experience, one-fifth of the weekly rate. In respect of weekly paid employees, at least, the renumeration contemplated by both the employer and employee must be related to working days only.’ 

The respondent’s position is that the Complainant, was in insurable employment but has simply paid insufficient PRSI contributions to qualify for a redundancy payment from the Department. The respondent has no reason to contradict the Department’s interpretation of the Complainant’s right to claim redundancy.

Findings and Conclusions:

Section 7 of the Redundancy Payments Act 1967 (as amended) provides for an employee’s right to redundancy payment as follows:

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….

5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

It is common case that the Complainant was employed by the Respondent from 23rd October 2020 to 21st November 2022 which is a period in excess of 104 weeks and she ceased to be employed in the employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966.

Continuous Employment under Schedule 3 of the Act provides:

5. Where an employee’s period of service has been interrupted by any one of the following—

(a) any period by reason of—

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the State,

(v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but authorised by the employer …

continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given.

In this case continuity of employment was not broken by the periods of sickness incurred by the Complainant.

Reckonable Service is defined in Schedule 3 of the Act as follows:

7. For the purposes of this Schedule, a week falling within a period of continuous employment and during which (or during any part of which) the employee concerned either was actually at work, or was absent therefrom by reason of sickness, … shall, subject to paragraph 8, be allowable as reckonable service.
8. 8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service—

(a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a)..

The records supplied by the Respondent show that there was no absence due to illness in excess of 26 consecutive weeks.

The Respondent argued that the proper Respondent to this complaint/appeal is the Department of Social Protection.  I do not accept this argument.  Section 39 (15) of the amended Act provides for the appeal to be submitted under Section 41 of the Workplace Relations Act 2015 and that references are to be made in such to the “Employer” and “Employee”. I note the decision of the Department and the right of the Complainant to appeal under the Redundancy Payments Act 1967 as amended.  The Respondent in this case is the Employer and I accept that the matter is properly before me. 

I find that the Complainant was in continuous employment for the requisite period and had continuous service which qualified her for a statutory redundancy payment.

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     23 October 2020

Date of Termination:             21 November 2022

Gross Weekly Pay:                   €144.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Decision:

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.

I have decided that the complainant is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     23 October 2020

Date of Termination:             21 November 2022

Gross Weekly Pay:                   €144.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Dated:   18/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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