ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049635

Parties:

	Complainant	Respondent
Parties	Eamon Loughran	Kevin Mathews t/a Tree Services

Representatives

Brendan Monahan,

Patrick J. Monahan & Associates ACCOUNTANTS and TAXATION CONSULTANTS Principals:

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00060889-001	08/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00060889-002	08/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00060889-003	08/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994	CA-00060889-004	08/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00060889-005	08/01/2024

Date of Adjudication Hearing: 14/05/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.

I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.

A complainant must be able to show a minimum two years (104 weeks) of service in the employment.

Responsibility to pay Statutory Redundancy rests with the Employer (or Liquidator as the case may be and where there are assets). Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).

In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.

The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there might be any issue with oral evidence then best practise is to require parties declare a solemn affirmation prior to giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 9th of January 2024.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant’s wife was with him and I could see her on the screen alongside her husband. The Complainant relied on the submission already outlined in the Workplace Relations Complaint Form. I sought further information from the Complainant regarding his employment relationship with the named Respondent. I was provided with supplemental documentary evidence in support of the Complainant’s case.

The Complainant had made a number of complaints when he filled out the complaint form in January of 2024. In the course of the hearing the Complainant withdrew each of the complaint other than the one which related to Redundancy. The Complainant alleges he is entitled to Statutory Redundancy.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. It was for him to make his case.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The Respondent’s Accountant attended with the Respondent. The Respondent Accountant had provided me with a letter of submission a few days prior to the hearing of this matter. I heard evidence from both the Employer and his Accountant herein. All evidence was heard following an Affirmation/Oath.

The Respondent agreed that the Complainant’s position no longer exists. The Complainant was let go at the end of December 2023, just before the Christmas break. The intention was to bring the Complainant back to work as more work arose. This never happened, and the Respondent never replaced any of the three Employees whose work was terminated on the 18th of December 2023.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

The facts herein are particularly sad and I am sensitive to that fact.

The Complainant and two others formed part of a tree cutting and pruning service being overseen by the Respondent. The Complainant had joined the team in July of 2020. As I understand it, the Respondent would submit tenders to the customer Electric Ireland to engage in the year-round job of cutting and pruning trees around the ESB poles. All four men worked the sites and worked as far afield as Meath and Louth and beyond.

As I understand it, there was a constant need to tender for work and as projects or sites came to an end, there might be a lull period before the next project came to fruition. However, there is no suggestion that the work ever dried up completely.

On the 18th of December 2023 the work did appear to dry up. The Complainant and his colleagues were dropped off after work by the Respondent who was, sadly, rushing to the hospital bedside of a beloved daughter. I understand the Respondent’s daughter died a few days later.

It is clear that the Complainant understood that things had changed, and he was put in the difficult position of needing clarity to be given from a man who was grieving the loss of a daughter. It was an invidious situation for the Complainant who also had a family and a mortgage and children pressures of his own. There was some limited communication between third parties and then nothing. The Complainant was forced to look for work elsewhere.

The Respondent confirmed that he never returned to being a workplace Employer thereafter. He never replaced the Complainant or his co-employees and any work that the Respondent does now is either private or working alongside his brother. The positions that the complainant and his colleagues held have therefore been made Redundant.

In the circumstances, I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence:

The employment started: July 3rd 2020

The employment ended: January 9th 2024

Gross weekly wage : €729.00

The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 will also apply.

I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

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.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060889-001 – This complaint was withdrawn by the Complainant in the course of the hearing.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060889-002 – This complaint was withdrawn by the Complainant in the course of the hearing.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060889-003 – This complaint was withdrawn by the Complainant in the course of the hearing.

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00060889-004 – This complaint was withdrawn by the Complainant in the course of the hearing.

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

CA-00060889-005

I find that his employment terminated by reason of redundancy.

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:

The employment started: July 3rd 2020

The employment ended: January 9th 2024

Gross weekly wage : €729.00

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

Dated: 05-07-2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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