RPD241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037979 (CA-00049482-001)

BACKGROUND:

The worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Redundancy Payments Acts, 1967 to 2014 on 11th October 2023. A Labour Court hearing was held on 20th February 2024. The following is the decision of the Court:

DECISION:

This is an appeal by LMK Detail Ltd (‘the Respondent’) against a decision of an Adjudication Officer given under the Redundancy Payments Act 1967 (‘the Act’) in a complaint made by Kevin Cunningham (the Complainant). The Adjudication Officer decided that the complaint was well founded.

The Factual Matrix

There is no dispute between the parties as to the relevant facts. They can, therefore, be recited in summary as follows:

 The Complainant was employed by the Respondent from 17th February 2016. He was laid off within the meaning of the Act with effect from 1st April 2020. He remained on lay-off at all material times thereafter.

The Complainant served the Respondent with a notice in writing of his intention to claim redundancy payment in respect of lay-off on 10th December 2021. That notice was in a form which was compliant with the requirements of the Act at Section 12(1)(b).

No counter-notice within the meaning of the Act at Section 13(2) was given to the Complainant in writing within seven days of 10th December 2021 advising that the Respondent would contest any liability to pay a redundancy payment to the Complainant.

The Respondent did make contact with the Complainant by ‘phone on 14th December 2021 and offered him a return to work on his previous terms and conditions of employment ‘after the Christmas break’.

Summary submission of the Complainant

The Complainant relied on section 12 of the Act to ground his claim for a statutory redundancy payment in circumstances where he had been placed on temporary lay-off for four continuous weeks or longer and where he had served notice in writing upon the Respondent of his intention to claim redundancy, and the latter failed to avail itself of its entitlement under section 13 of the Act to confirm to the Complainant in writing that it would contest any liability to pay a redundancy payment to him.

Neither was it reasonably to be expected by the Complainant on the 10th December 2021 that he would, not later than four weeks after that date, enter upon a period of employment with the Respondent of not less than thirteen weeks during which he would not be laid off or kept on short time for any week.

The Complainant submitted that, by operation of the law, against this factual background he became entitled to redundancy payment.

The Complainant chose not to tender sworn evidence when invited by the Court to do so.

Summary submission of the Respondent

The Respondent accepted that no counter notice in writing was served on the Complainant within seven days of the receipt of a notice from him on 10th December 2021 stating that it was his intention claim redundancy payment in respect of lay-off.

The Respondent submitted that an offer of employment ‘after the Christmas break’ was made to the Complainant on 14th December 2021 and that offer was accepted by him at that time. He subsequently made plain that he did not wish to take up that offer of employment.

The Respondent submitted that the Complainant’s failure to take up the offer of employment meant that he became disentitled to a redundancy payment by reason of the provisions of the Act at Section 15.

The Respondent submitted that the Act should not be interpreted so strictly as to mean that the Complainant became entitled to a redundancy payment by operation of the Act at Section 12 and 13. The Respondent was unable to provide any authority for the proposition that the Court was at large to interpret the Act other than in the manner it is written.

The Respondent chose not to tender sworn evidence when invited to do so by the Court.

Relevant Law

Sections 12, 13 and 15 of the Act make provision as follows:

Section 12

12. (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Section 13

13. (1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

Section 15

15. Disentitlement to redundancy payment for refusal to accept alternative employment

(1) An employee shall not be entitled to a redundancy payment if

(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before [the termination of his contract],

(c) the renewal or re-engagement would take effect on or before the date of [the termination of his contract], and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

 (e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

(2B) Where—

(a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

(3) Where a person who is entitled to a weekly payment has unreasonably refused suitable employment offered or approved by [An tSeirbhís Oideachais Leanúnaigh agus Scileanna], that person shall be disqualified from receiving any further payments.

Discussion and Conclusion

It is clear that the issue that arises for determination in this appeal must be addressed having regard solely to the provisions of sections 12 and 13 of the Act. The text of the Act does not, on plain reading, make the operation of those provisions contingent on the provisions of section 15 of the Act. The latter provision does not, on plain reading, displace the entitlements (a) of an employee who has been laid off for a minimum specified period to initiate a claim for a redundancy payment in respect of lay-off; or (b) of an employer to contest the employee’s claim by serving a mandatory counter-notice in writing within seven days.

Those circumstances are stated with clarity in the Act. An employee who has been laid off for the period specified in the Act is entitled to serve notice in writing upon the employer of his intention to claim redundancy payment in respect of lay-off. The Complainant in the within appeal served such a notice in writing upon the Respondent.

An employer is entitled to counter claim in writing within seven days of receipt of such a notice in writing to the effect that the employer will contest any liability to pay the employee a redundancy payment. The Respondent in the within appeal did not serve such a notice upon the Complainant.

In the within appeal, no submission has been made that, having regard to the provisions of the Act at Section 13(1), at the date of service of notice in writing upon the Respondent, there was a basis to hold that it was reasonably to be expected that the Complainant (if he continued to be employed by the Respondent) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

The Court therefore concludes that the Complainant engaged section 12(1)(b) of the Act on 10th December 2021 when he served notice in writing upon the Respondent; and the Respondent did not serve counter-notice in writing upon the Complainant within seven days of that date.

By operation of the law therefore, the Court must conclude that the Complainant is entitled to a redundancy payment in respect of lay-off.

Decision

For the reasons set out above, the Court decides that the Complainant is entitled to a redundancy payment in respect of lay-off in accordance with the Act.

The decision of the Adjudication Officer is affirmed and the within appeals fails.

The court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CDK	______________________
27th February 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Coleen Dunne Kennedy, Court Secretary.