Complainant

Respondent

Parties

Lorcan  Tannam

Killybrackey Limited Scalp Wood Nurseries

Complainant

Respondent

Parties

Lorcan Tannam

Killybrackey Limited Scalp Wood Nurseries

Representatives

John Dunne McInnes Dunne Murphy LLP

 No Show

Act

Complaint Reference No.

Date of Receipt

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

CA-00060691-001

22/12/2023

The Respondent Company operated a garden centre and the garden centre ceased trading in mid-December 2022 when the owner became ill.

The Company Registration Officer details for the Respondent Company are:

Reg. Number 412949

Reg. Name KILLYBRACKEY LIMITED

Type LTD - Private Company Limited by Shares

Status Normal

Effective Date 21/12/2005

Registered on 21/12/2005

Next Annual Return 30/09/2023

Reg. Address SCALPWOOD, DUBLIN 18, KILTERNAN, DUBLIN, IRELAND

The Complainant worked as a horticulturist and sales assistant with the Respondent.

He commenced employment with Company on the 1st of January 2006 and by reason of redundancy his employment ended on the 8th of August 2023.

The Complainant was placed on lay-off on or about mid -December 2022. Arising from numerous requests to clarify his employment position without any success on the 31st of July 2023 the Complainant wrote to the Company Secretary informing her that he wished to be made redundant and enclosed the required RP 9 form in this regard.

His gross weekly pay was €369.12.

The Complainant was placed on layoff arising from the owner of the business becoming seriously ill. After several months of layoff, the Complainant requested to be made redundant.

The Law 3.1 Section 12 of the Redundancy Payments Act 1967 (as amended) (“the RPA”) provides inter alia that where an employee is kept on lay off or short time for four or more consecutive weeks by his/her employer he/she may claim a redundancy payment from the employer provided he/she issues a notice in writing to the employer of his/her intention in this regard, which the Claimant in this case did by letter dated 31 July 2023 (see Appendix 6). 3.2 Section 13 of the RPA provides that an employee will not be entitled to a redundancy payment in such circumstances if, on the date of service of the employee’s notice of intention to claim this, the employer is in a position to provide the employee with work for at least 13 weeks commencing no later than four weeks from the date of the employee’s said notice, provided the employer issues a counter notice that it will contest any liability to pay the employee a redundancy payment within seven days of the date of the employee’s said notice, in default of which the employee will be entitled to a redundancy payment. 3.3 Since the Respondent herein issued no counter-notice pursuant to section 13 of the RPA, either within seven days of the Claimant’s notice of intention to claim a redundancy payment or at all, it follows that the Claimant is entitled to a redundancy payment from the Respondent pursuant to sections 12 and 19 of the RPA in the sum of €13,561 having regard to his wages and length of service and the Adjudication Officer is requested to so determine.

The owner of the business is deceased.

CA-00045596-001  Statutory Redundancy Entitlement

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

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.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy subject to section 12(2) and the requirement to provide 1 weeks’ notice to the employer.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 1st of January 2006 as per the contract of employment.

2.       Contractual termination date (allowing for 1 week’s notice to employer) 8th of August 2023.

3.       Date of lay-off the 15th of December 2022.

4.       The RP9 Form was served on the employer on the 31st July 2023

5.       Gross weekly wage €369.12

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

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),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on the 9th of April 1986 to the time of lay-off on the 15th of March 2020.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

I determine that the Complainant is entitled to statutory redundancy based on the facts as detailed.

I am satisfied that the Complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 1st of January 2006 as per the contract of employment.

2.       Contractual termination date (allowing for 1 week’s notice to employer) 8th of August 2023.

3.       Date of lay-off the 15th of December 2022.

4.       The RP9 Form was served on the employer on the 31st July 2023

5.       Gross weekly wage €369.12

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

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),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on the 9th of April 1986 to the time of lay-off on the 15th of March 2020.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.