ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050452

Parties:

Complaint:

Date of Adjudication Hearing:  14/05/2024

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 Act 1967following 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 statutory redundancy payment.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent from 17th January 2018 to 28th February 2022.

His complaint was submitted to the WRC on 9th February 2024.  

He is asking for the extension of time up to 104 weeks. His redundancy application was not submitted in time due to a few causes:

Mr Cooney has been misled for many months by the former employer – Blackwell and Senior Care Limited - that his reason of the cessation of employment was not redundancy but transfer of employees under TUPE regulation. He had tried to establish with both employers (current and former) which regulations should determine his case. The current Employer denied it was or could be transfer under TUPE, the former employer was not able to provide any proof or relevant documentation confirming the TUPE had place in this case. Hence Mr Cooney requested (together with the rest of crew) on various occasions Blackwell and Wright Senior Care Limited to furnish him with the redundancy certificate and payment.

Since 28th of February 2022, even though Mr Cooney was employed in the new Company, on his Account in the Revenue Service his employment with Blackwell and Wright Senior Care Limited was active and the crew was making online conversation regarding the redundancy with the former Employer. On the Revenue account recently has appeared date of leaving - 01/01/2023 for many months since Mr Cooney has started (28/02/2022) the employment with Resilience his employment with Blackwell was active on his Revenues account.

In December 2021 Mr. Cooney was informed by the Employer that his employment with Blackwell and Wright Senior Care Ltd, Home Instead Senior Care would be ended in February 2022, because the Employer’s contract with the HSE would be coming to an end. However, the workforce could apply for a new job with Resilience (and Blackwell had to give the consent for these applications) and start new employment with the new medical service provider and stay at the same place of employment if they wish. In fact, Mr. Cooney was made redundant.

Summary of Respondent’s Case:

The Respondent strongly refutes that it made the Complainant redundant.  The employment of the Complainant was transferred under TUPE when the contract transferred to Resilience.

In any event, the Respondent cited cannot be held responsible for a decision which may issue as the Respondent no longer exists as an entity, having merged with Cuala Care on 1st January 2024.  This predates the Complainant’s submission of his complaint.

The Respondent argues that no extension of time be given.  The Complainant informed the Respondent in March 2022 that he was seeking legal advice.  In those circumstances, the complaint should have been submitted then.  He submitted his complaint 103 weeks after his employment ended with the Respondent.  The business transferred to Resilience and the Complainant may have had a complaint under TUPE against that company.  The Respondent cannot be found to be responsible.

The Redundancy Act contains two elements that must be fulfilled:

That there is reasonable cause for delay

That the employee would be entitled to the lump sum.

In this case, it is submitted there is no reasonable cause for delay and the claim must be dismissed.  In that case, there is no requirement to consider whether the employee is entitled to a lump sum. 

Notwithstanding, it is the Respondent’s position that HSE tendering process brought about the contract for service provision to the transferee which constitutes a transfer of undertakings under the European Communities (Protection of employees on Transfer of Undertakings) Regulations 2003.

The Respondent outlined two claims taken against it by two former employees, one was not upheld and the other was upheld in August 2023.

Findings and Conclusions:

Time Limits

The first issue to be addressed is that of time limits. 

The complaint was received on 9th February 2024. The Complainant’s employment with the Respondent ended on 28th February 2022. 

The time limits on claims for redundancy payments are clearly set out in the Act.  Section 24 (1)(c) states that an employee shall not be entitled to a lump sum unless the employee refers the question of the right to the payment to the Director General of WRC before the end of the period of 52 weeks beginning on the date of the dismissal, or termination of employment.

Section 24 (2A) of 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”

I note that the Complainant and some of his colleagues sought redundancy from the Respondent.              It is of particular note that the Complainant advised the Respondent in March 2022 that he was seeking legal advice.  I take two matters into account in deciding whether the failure to make his claim before the end of the 52-week period constitutes reasonable cause and if the claim period should be extended.

(a) he did not submit a complaint at the time when he believed he was entitled to a redundancy lump sum and informed the Respondent he was seeking legal advice, and

(b) he submitted his complaint some six months after a colleague successfully pursued a complaint.

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay”.

The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time …there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

In this instant case, the Complainant has failed to establish a reasonable cause to explain the delay and afford an excuse for the delay in bringing his claim within the time limit.  I do not agree to extend the time limit.  I therefore find his complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

For the reasons outlined, this complaint is out of time and I have decided that it is not well founded.

Dated:   05th July 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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