RPD2313

Appeal of Adjudication Officer Decision No's: ADJ-00045107 (CA-00055929-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 7 September 2023 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 14 December 2023. The following is the Decision of the Court.

DECISION:

This is an appeal by Jack Brennan against the decision of an Adjudication Officer (Number: - ADJ-00045107, CA-00055929-01, dated 29 August 2023), given under the Redundancy Payments Act 1967 (‘the Act’).  The Adjudication Officer held that his claim for a redundancy payment was not well-founded.

The parties are referred to in this Determination below as they were at first instance. Hence, Jack Brennan is referred to as the Complainant and Lmc Mep Limited (in Liquidation) is referred to as the Respondent.

Agreed Factual Matrix

The Respondent company went into liquidation. The Liquidator submitted the necessary paperwork to Social Welfare with details of employment to support the Complainant’s claim for statutory redundancy. According to Social Welfare records the Complainant did not possess the required continuous weeks of employment to meet the threshold required to be eligible.

Position of the Complainant

The Complainant commenced employment with the Respondent on 28 September 2020 as an apprentice plumber. He immediately and consistently carried out the work of an apprentice plumber for the Respondent.  During his employment, he suffered an occupational injury and was absent on certified sick leave for a period of approximately 6 and a half weeks in late 2020. He submitted sick certificates to the Respondent for this period, which were not processed and were ultimately lost by the Respondent. He returned to work in the first week of January 2021.

The Respondent failed to notify SOLAS of his apprenticeship within 2 weeks of his commencement of his employment with the Respondent and that this led to significant delays in his qualification.

The Complainant was notified by letter dated 29 November 2022 that he was being made redundant effective immediately.  He did not receive any statutory redundancy payment.

The Complainant was employed continuously for a period of 113 weeks. He has the requisite service accrued to entitle him to a statutory redundancy payment, however, due to improper record keeping by the Respondent he has been unjustly denied that payment.

Position of the Respondent

Mr Micheal Leydon (Joint Liquidator) submitted that the factual matrix of this appeal is not in dispute

A redundancy application was made on the Complainant’s behalf by the Liquidator to the Department of Social Protection’s Redundancy fund. His claim was rejected on the basis that the Complainant did not have the requisite 104 weeks social insurance contributions/service to qualify.

Evidence of the Complainant – Jack Brennan

The Complainant gave evidence under oath to the Court that he commenced employment as an apprentice plumber on 28 September 2020. He suffered an injury at work which resulted in his absence for a six-week period. His employer failed to notify SOLAS of his apprenticeship status at the commencement of his employment which has subsequently led to significant delays in his qualification. He told the Court that he was informed by SOLAS that if he receives a decision from the Labour Court finding that he was continuously employed as an apprentice plumber from the commencement of his employment, he can apply for credit for time worked.

He was notified by letter dated 29 November 2022 that he was being made redundant effective immediately.

The Relevant Law

Section 7 of the Redundancy Payment Act, 1967, sets out a general right to a 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.

(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,

Deliberation and findings

The appeal before the Court concerns the Complainant’s entitlement to a statutory redundancy payment in accordance with Section 19 of the Redundancy Payments Act 1967.

The key facts are not disputed. The Complainant commenced employment with the Respondent company on 28 September 2020.  The Respondent company went into liquidation and his employment was terminated on 29 November 2022.

The Court accepts the uncontested sworn evidence of the Complainant that, notwithstanding delays in registering the Complainant as an apprentice plumber with the relevant body, he was in continuous employment with the Respondent company as an apprentice plumber during this period.

The Court finds that the Complainant has satisfied the requirements as set out in 7(1)(a) of the Act, insofar that he was employed for the requisite period to accrue an entitlement to a redundancy payment where his employment is terminated by reason of redundancy.

It is accepted that following an Order of the High Court dated 29 November 2022 the Respondent company was placed into liquidation. The Complainant was served with formal notice of the termination of his employment by reason of redundancy on the same date.

The Court finds that the requirements as set out in Section 7(2)(a) of the Act are satisfied in so far that the Respondent employer ceased to carry on the business for the purposes of which the employee was employed.

Decision

It is clear from the undisputed facts of the case before the Court that the Complainant’s position was made redundant within the meaning of the Act at Section 7 on 29 November 2022.

Accordingly, the Court finds that the complainant is entitled to a redundancy payment in line with the Redundancy Payments Acts in respect of his service from 28 September 2020 to 29 November 2022.

It is agreed that the complainant’s rate of pay was €720.72 per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Redundancy Act 1967.

The Court determines that the Complainant’s claim is well founded. 

The Adjudicator’s decision is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
15 December 2023	Deputy Chairman