Complainant

Respondent

Parties

Paul  Fleming

Insurance And General Investigation Services Itd

Representatives

 Appeared In Person  

Aidan Logan Logan & Mulcahy Accountants (No Appearance)

Act

Complaints Reference No.

Date of Receipt

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

CA-00060834-001

04/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060834-002

04/01/2024

On 4 January 2024, the Complainant submitted two complaints to the WRC regarding the conclusion of his employment in November 2023.

He claimed a statutory lump sum payment in redundancy and a payment in lieu of minimum notice.

The Respondent was placed on notice of these complaints.

On 14 March 2024, both Parties were invited to a hearing scheduled for 3 May 2024.

On 19 April ,2024, Bernard Hickey of the Respondent business wrote to the WRC delegating authority to Logan Mulcahy Accountants ltd for WRC “to discuss and communicate all relevant matters with Mr. Logan in this regard “

On that same day, Mr. Logan sought to postpone the hearing to” gather information”. 

This application to postpone was refused by the Postponement Section on 26 April 2024 and notification of this was shared with Mr. Logan and Mr. Fleming.

Both Parties were notified that the case was pressing ahead as planned.

I confirm that your application has been refused. The hearing will proceed as scheduled in accordance with the following arrangements:

Disappointingly, there was no appearance by the Respondent or his representative at hearing. Neither Party filed a defence in the case and neither Party explained nor excused their absence from hearing.

I opened the hearing at 12.10 hrs., allowing a brief delay, just in case the respondent had difficulty with logistics of attendance. There was no appearance by the Respondent in person or by representative.

The Complainant was in attendance as a Litigant in Person.

At the conclusion of the hearing, I requested the complainant provide additional documents to assist me in my Inquiry.

1 records of payment of wages

2 a specific Revenue Document, which I will explain later.

3 a document where the complainant referenced that Covid lay off break in service period was eligible for incorporation into a redundancy payment.

All three requests were complied with and shared with the respondent.

The Complainant introduced both his claims as arising from an employment tenure which spanned 4 August 2000 to 10 November 2023. During this time, he worked for the Respondent Insurance and Investigation business as a Private Investigator.

He received a gross weekly payment of €720.66, (€600.00 nett) in respect of a 50-hour week.

He outlined on his complainant form that this job had concluded without notice.

CA-00060834-001   Claim for Redundancy lump sum

The Complainant sought a statutory lump sum payment in redundancy in respect of the conclusion of his employment on 10 November 2023.

He had submitted an RP77 form to the respondent, without success.

CA-00060834-002 Claim for Payment In Lieu of Notice

The Complainant is seeking payment in lieu of notice on the cessation of his employment.

Evidence of the Complainant provided by Affirmation.

The Complainant outlined that he had worked as a Private Investigator from 4 August 2000 to his contended date of dismissal which was submitted as either of the dates 27 October or 10 November 2023.

He had not been provided with a contract or pay slips. Instead, he was paid weekly on Thursdays by cheque. His nett pay of €600 remained unaltered during his tenure. He submitted that his statutory deductions were made by the respondent.

He had sustained a break in service for 20 weeks from 27 March 2020 due to the covid Pandemic.

It was the Complainants’ case that he had been dismissed by the Respondent when he was directed to “stand down “on 14 November 2023.

During this phone call, he had been informed that a number of payments, salaries associated with the business, had not been met by the Respondent.

In the early days of his tenure, there had been four employees, two Directors and two field-based staff. One Director had retired, and one field worker departed the business in 2019.

The Complainant told the hearing that, Mr Bernard Hickey had approached him on 14 November 2023 and told him that he was in financial difficulty. He did not exhibit detail of profit and loss but indicated that he was seeking to address the financial challenges he was faced with.

Two salary cheques were subsequently returned as they had bounced. These cheques were later exhibited as cheques dated 3 and 9 November 2023 and marked return to drawer.

The Complainant was unsure what to do as his employment was still live on Revenue and he was unable to sign on as being unemployed at DSP.

The Complainant affirmed that Mr Hickey had informed him that his finish date had been amended by his Accountants to 27 October 2023

This uncertainty prevailed for three weeks before he sought out Mr Hickey by phone on 27 November 2023 to ask him to clarify “Is my job gone? “

Mr Hickey told him that “it looks like it’s gone “and followed with “You might be better off finding something else “He indicated that he was assessing the viability of continuing the business as the secretary was working without pay. The Complainant understood that she too had departed the business.

The Complainant was unaware of any indication of a financial deficit at the business.

He made application for job seekers benefit, on foot of believing his job was gone.

On 7 December 2023, the Complainant received a message by text that Mr Hickey had left two cheques at his home. He requested return of the company phone and vehicle.

The Complainant dropped these back on 9 December 2023. He changed his phone number on 8 December 2023.

He submitted that the circumstances of his dismissal fell under either Section 7(2) (b) or Section 7(2) (c) of the Redundancy Payments Act 1967, as amended. He understood that the business was still trading, but he contended that he had not been replaced.

He contended that the 20 weeks of break in service during 2020, where he received the PUP payment were reckonable for continuity in the calculation of the statutory lump sum in redundancy.

The Complainant has since found new work and had not received any follow up to his submission of his claim for redundancy on RP 77 form on 9 December 2023. He had not retained a copy.

The Complainant argued that it would have been fairer for the respondent to have placed him on lay off rather than the ambiguous “stand down “which required multiple requests for clarification.

He was very grateful for his long tenure but disappointed at its ending in the manner it did.

Legal Title for the Respondent

Early on in the hearing in a review of the complaint form, I asked the Complainant to validate the Respondent legal entity.

He clarified that the legal title as reflected on his pay cheques and Revenue records said.

Insurance and General Investigation Services ltd

He requested a facilitated amendment of title.

CA-00060834-002 Claim for Payment In Lieu of Notice

The Complainant is seeking payment in lieu of notice on the cessation of his employment. He also claimed a week’s holidays.

It was the Respondent case that his employment had ended without payment of notice.

He had not received any supporting documentation which confirmed the termination of his employment.

CA-00060834-001   Claim for Redundancy lump sum

There was no appearance by or on behalf of the Respondent.

There was no defence filed in the case.

The Respondent had been unsuccessful in a bid to postpone the hearing.

There was no explanation or excuse for this non-appearance.

CA-00060834-002 Claim for Payment In Lieu of Notice

There was no appearance by or on behalf of the Respondent.

There was no defence filed in the case.

The Respondent had been unsuccessful in a bid to postpone the hearing.

There was no explanation or excuse for this non-appearance.

I have been requested to reach two decisions in these cases.

CA-00060834-001   Claim for Redundancy lump sum

CA-00060834-002 Claim for Payment In Lieu of Notice

In reaching my decision, I am satisfied that both Parties were properly notified of the hearing in this case and the Complainant was the sole participant at hearing.

The Respondent, having been notified of an unsuccessful application for postponement of May 3, 2024, hearing, and the confirmation that the hearing was proceeding, did not make an appearance.

I found this unreasonable, unhelpful and regrettable as there are two Parties in an Employer / Employee relationship, it always helps me enormously to hear from both sides.

This impact of this failure to attend intensified as I explored the facts of the case, as the Complainant clearly applied his very best efforts to providing the facts as he understood them.

However, detail of the antecedent events in the case as seen by the respondent were not within his gift and thus not available to me.

I have found it necessary to record my disappointment at the avoidance exhibited by the Respondent and his nominated representative and the lack of respect for a Statutory Body charged with inquiry under legislation.

It may well have been the case that the Respondent was actively compiling a dossier to assist in my investigation, however, this was never shared with the WRC. The Respondent has chosen to adopt an avoidant approach.

During this case, the Respondent was notified on three occasions of the requirement to file an outline position in the case.

All of the Complainants papers were shared with the respondent, up to and including the post hearing submissions of cheques, revenue records and legislative amendment. No response was received.

Preliminary Issue: Legal Title

The Complainant submitted his claim against

Insurance And General Investigation Services . In my review of the complaint form with the complainant, I asked him to verify this title. He acknowledged that he had omitted to place ltd at the end of the title. He confirmed that Revenue documents and Pay cheques had always reflected that title and requested that I amend the title .I did request that the complainant forward supporting documentation is support .The Respondent had not raised any issue on legal title in their correspondence .It is important for me to reflect an accurate legal title in my decision in case of appeal or enforcement proceedings .I have taken some guidance from

The Labour Court case of Auto Depot ltd v Vasile Mateiu, UDD 1954,

Where, the Court has helpfully clarified what steps can be taken in the case of a technical error on a complaint form, on appeal.

That case involved claims under Unfair Dismissal, Payment of Wages, Terms of Employment and referred to the inclusion of “Auto Dept Tyres ltd “rather than “Auto Depot ltd “on the complaint form.

The Labour Court engaged in an extensive consideration of the jurisprudence in this area and determined.

“Accordingly, the Court considers the erroneous inclusion of “Auto Dept Tyres ltd “on the complaint form to be no more than a technical error. The Court is fully satisfied that the Respondents name can simply be amended on the paperwork to reflect its correct legal title, that of the “Auto Depot ltd “

The circumstances in the instant case are the converse where ltd was omitted. I am satisfied that in the face of a lack of any stated objection by the Respondent at any stage pre hearing or indeed at hearing , that I can apply the precedent in Auto Depot Ltd and amend the legal title in this case to Insurance and General Investigation Services ltd due to a technical error , in the interest of justice and the complainants right to a remedy . I have done so .

CA-00060834-001   Claim for Redundancy lump sum

The Complainant has claimed a statutory lump sum on redundancy. He has expressed some uncertainty on his contended date of dismissal.

I have not had the benefit of evidence from the Respondent.

My jurisdiction in this case emanates from the Redundancy Payments Act 1967 -2022, as amended.

Dismissal by employer.

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer ‘s conduct.

Therefore, as a first step in this case, I must be satisfied that a dismissal has occurred.

The evidence adduced by the Complainant was uncontested.

contract of employment" means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing and references to "contract" shall be construed accordingly.

In this case, the contract is recognised as an oral construction that ran continuously save for a PUP/ Covid related break in service in March 2020.

Section 2 of the Act provides a helpful guidance on what I need to have in identifying a date of dismissal.

That is Section 2(1)(b), where termination occurs without notice.

“Date of dismissal”, in relation to an employee, means—

(a) where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and

(c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires,

and cognate phrases shall be construed accordingly.

The Complainant gave evidence that the antecedent event in this case for him was on 14 November 2023, he was told to “stand down “by his employer. No paperwork accompanied this move, and he was not officially placed on temporary layoff. He spent the next number of weeks in an

 “Employment wilderness “where he made repeated attempts to seek some clarification on his future at the business and was unable to obtain job seekers benefit, which normally accompanies a confirmation of temporary layoff. I can appreciate that his was a very difficult period in a previously uncontroversial working relationship.

The Revenue documents indicate that a payment was made on 17 November 2023, yet equally date of leaving was recorded as 27 October 2023. A reasonable person would be confused by this topsy turvy chronology.

I accept the Complainants uncontroverted evidence that he received two further pay cheques during the first week of December 2023.

In applying my best efforts in analysing the information before me, I have identified the date of dismissal for the purposes of the Redundancy Payments Act 1976 and application of Section 2(1) (b) as 27 November 2023.

I have accepted that the Complainant received two pay cheques to make good the previous returned cheques and the remaining weeks must be recorded as a break in service on lay off.

This places the Complainant in the vicinity of Section 7 of the Act in relation to a General Right to a lump sum Redundancy Payment.  

Section 7 of the Act sets out the

General right to redundancy payment.

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.

Section 7(2) of the Act sets out the scenarios of Redundancy, which is directed against the job and not the person.

St Ledger v Frontline Distributors ltd [1995] ELR 160 at EAT, placed Redundancy on a wholly impersonal and change footing as it observed that the set of circumstances presented did not amount to Redundancy.

Redundancy is impersonal and it involves change. The definition in section 7(2)(d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. The definition in 7(2)(e) must involve, partly at least, work of a different kind. More work or less work of the same kind does not mean ‘other work’. The Tribunal was satisfied that the nature of the work did not change, nor did the manner in which it was done. Therefore, there was no redundancy within the meaning of either definition 7(2)(d) or (e) of the Redundancy Payments Acts.

In the instant case, I accept the Complainants uncontested evidence that his work was ceased when the Respondent informed him that financial challenges on paying bills and staff impeded his continuance in the job for which he was employed. He did not return to his job after 14 November 2023 and as far as he was aware, he had not been replaced.

There was no offer to re-engage him or renew his tenure.

I find that the Complainant was dismissed through the Redundancy through the application of Section 7(2) (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,

As the complainant had a break in service, through lay off for 20 weeks from March 2020, he has requested that his period of lay off for this period be reckoned for inclusion in the lump sum calculations, if his claim for redundancy succeeds.

The Parties will note that the avenue to progress this matter is to the Minister for Enterprise Trade and Employment (Department of Social Protection)

Note the decision on reckon ability of time spent on lay off in Sheehan v Insolvency Payments Section, ADJ 31194. On that occasion, the Adjudicator accepted the submitted continuity of service as reckonable service for purposes of statutory redundancy.

The redundancy Payments Act, 1967 was amended:

Covid-19 related lay-off payment Inserted (19.04.2022) by Redundancy Payments (Amendment) Act 2022 (3/2022), s. 2, S.I. No. 174 of 2022.

32A.— (1) This section applies to an employee—

(a) who is entitled to a redundancy payment under section 7,

(b) whose entitlement to a lump sum payment under section 19 arises during the period beginning on 13 March 2020 and ending on 31 January 2025, and

(c) who was laid off during the period beginning on 13 March 2020 and ending on 31 January 2022 due to the effect of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

(2) An employer, on behalf of an employee to whom this section applies, may apply to the Minister for a payment in respect of any periods of lay-off referred to in subsection (1)(c) in the manner determined by the Minister.

(3) If an employer refuses or fails to apply to the Minister on the employee’s behalf for a payment under subsection (2), the employee may apply to the Minister for the payment.

I fully accept that the Complainant in this case had uninterrupted service from 4 August 2000 to the date of his dismissal, which I have found to be 27 November 2023. He had one recorded break of 20-week service during 2020 service which comes under the remit of section 32(A) where either the Employer or Employer may apply for a payment in respect of covid related Lay Off to the Minister / Dept of Social Protection.

I have found that the Complainant was dismissed through Redundancy in accordance with Section 7(2)(b) of the Act.

The Complainant is entitled to receive a lump sum payment in redundancy. The claim is well founded.

CA-00060834-002 Claim for Payment In Lieu of Notice

The Complainant has sought payment in lieu of notice. He gave uncontested evidence that he had unbroken service from 4 August 2023 to the date of his dismissal, deemed by me to be 23 November 2023. The period of Covid related leave did not disturb this continuity.

My jurisdiction in this case arises from Section 4 of the Minimum Notice and Terms of Employment Act, 1973

Where at Section 4, it sets out the obligations of an Employer.

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The Respondent has not made an appearance or forwarded a defence in this case.

I accept the evidence of the uncontroverted evidence of the Complainant that he in excess of 15 years continuous service with the Respondent.

By the strict application of the facts to Section 4(2) (e) of the Act, I find that the claim is well founded.

CA-00060834-001   Claim for Redundancy Period

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.

I have found that the Complainant is entitled to receive a statutory lump sum payment in Redundancy in respect of his dismissal on 27 November 2023 from the Respondent.

His claim is well founded.

Date of Commencement: 4 August 2000

Salary: Gross Pay                  €720.66

Date of Termination          27 November 2023

Breaks in service:      20 weeks   from March 27, 2020 (subject to Section 32A)

This order is made on the provision that the complainant was in insurable employment during the period reflected above.

CA-00060834-002 Claim for Payment In Lieu of Notice

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 12 of Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in accordance with Section 4 of that Act.

I have found the claim well founded as I have established a contravention in Section 4(2) (e) of the Act.

I hereby direct the Respondent to pay to the employee compensation of €5,765.28 for the loss sustained by the employee by reason of the contravention. This amount reflects in excess of 15 years’ service.

Lump Sum Payment in Redundancy