Complainant

Respondent

Parties

Jason  Cuffe

Trojan Heating Solutions Limited

Representatives

Nicola Ryan Newbridge Citizens Information,

North Leinster Citizens Information Service

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056146-002

18/04/2023

The Complainant was employed as a Labourer with the Respondent from the 04 August 2020 until 21 October 2022. On 13th October 2020, the complainant was laid off due to the Covid pandemic. He received the Pandemic Payment (PUP) from the Department of Social Protection from the 13 October 2020 until 3 May 2021

The Complainant is seeking his redundancy entitlements under the Redundancy Payments Act, 1967, to the effect that the Complainant was made redundant and did not receive a statutory redundancy payment.

The Complainant submits as follows;

The Complainant was employed as a Labourer with the Respondent, Trojan Heating Solutions Limited from the 04 August 2020 until 21 October 2022.

The Complainant submits that he is seeking his redundancy entitlements under the Redundancy Payments Act, 1967, to the effect that the Complainant was made redundant and did not receive a statutory redundancy payment.

On 13 October 2020, the Complainant was laid off due to the Covid pandemic. He received the Pandemic Payment (PUP) from the Department of Social Protection from the 13 October 2020 until 3 May 2021.

The Complainant further submits that he returned to employment with the respondent, Trojan Heating Solutions Limited on the 4 May 2021.

 On 21 October 2022, the Complainant was informed by the Respondent by way of phone call that the business was going into receivership, and that he was no longer an employee.

At this point, the Complainant noted that he was also informed that a liquidator was appointed.

The Complainant submitted that he sent an RP77 form to the Respondent seeking his statutory redundancy on the 11 November 2022.

On 29 November 2022, on behalf of the Complainant, the North Leinster Citizen Information Service wrote to the liquidator seeking the Complainants outstanding statutory entitlement in relation to his redundancy payment.

On the 14 December 2022, the liquidator corresponded with the Complainant to confirm their appointment as Liquidator to the Respondent, Trojan Heating Solutions Limited (In Voluntary Liquidation).

The Complainant informed the hearing that statutory forms for both redundancy and insolvency payments were provided to the Complainant for completion, and these were completed and returned.

 In the weeks that followed on the 08 February 2023, it was submitted that the North Leinster Citizen Information Service sought an update from the liquidator in relation to the outstanding statutory entitlements owed to Complainant.

On the 07/03/2023, 04/04/2023, 11/04/2023 and 25/04/2023, its submitted that the liquidator informed the Complainant they were experiencing delays with the Redundancy Payment's Section in the Department of Social Protection.

To avoid any issues in relation to time limits, the Complainant told the hearing that he submitted a complaint without further delay on 18th April 2023 to the Workplace Relations Commission, with the assistance of the North Leinster Citizens Information Service

The Complainant explained that on the 05 July a Deciding Officer from the Department of Social Protection (Redundancy Payments Section) issued a disallowance letter to the Complainant in respect of a claim submitted for redundancy via the Redundancy Payments Scheme.

The Redundancy and Insolvency Payments Section on 05 July 2023 stated that, "Having examined the information, a decision has been made to disallow your application as it does not meet the required criteria. Reason for disallowance: Insufficient service. An employee must be an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, with the relevant employer. Having reviewed the information supplied it appears that you do not meet the criteria. The date you were made redundant 21/10/2022 or within the four-year period prior to that date you were not in full insurable employment with the relevant employer’’.

The Deciding Officer stated that the Complainant had less than 104 weeks continuous employment as provided for in Section 7 of the Redundancy Payments Act 1967.

Redundancy:

Section 7 (2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly

to —

The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or

(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.

Section 7 of Redundancy Payments Act 1967 further provides that:

7. General right to redundancy payment

(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

Section 1, subsection (5) goes on to define "requisite period" as; "5) In this section "requisite period" means a period of [1041 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years"

Schedule 3 goes on to provide inter alia the definition of "continuous service" as being.

Where an employee s period of service is interrupted by any one of the following: (a) any period by reason of- (!) sickness (ii) lay- off (iii) holidays (iv) service by the employee in the Reserve Defence Forces of the State (v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but Section 1 1 of the act particularises that;

"where an employee's employment ceases by reason of his employer being unable to provide work for which the employee was employed to do and (a) it is reasonable in the circumstances for the employer to believe that the cessation of  employment will not be permanent; and (b) the employer gives notice to that effect to the employee prior to the cessation, the cessation will be regarded as lay- off. " authorised by the employer, continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given.

It is in this context, the Complainant submits that he was employed by Trojan Heating Solutions Limited from 4 August 2020 until the 21 October 2022. He has 2.21 years of continuous service of employment.

The summary of pay related social insurance contributions for the complainant substantiate the claim that 70 contributions were paid by him during his employment and the Department of Social Protection submits that this is less than the 104 weeks continuous employment referred to in Section 7 of the Act.

The Complainant submits that The Department of Social Protection concluded that it therefore does not appear that the complainant was employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2004 for the requisite period.

Schedule 3 of the Act defines Continuous Employment'. It outlines a number of interruptions to the period of service which preserves the continuity of service.

Schedule 3 states 'continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given'.

In support of the Complainants position, the Complainants representative cited a recent decision from the Workplace Relations Commission: ADJ-00031194.

In conclusion, the Complainant submits that he has established an entitlement to redundancy under the Redundancy Payments Act, 1967 and is entitled to a redundancy payment based on the following criteria:

Employee Start Date: 04 August 2020

Employee Finish Date: 21 October 2022

Periods of Covid related lay-off: 13 October 2020 to 3 May 2021

Gross wages per week: €432.61

Statutory Redundancy: €1868.88

The Respondent did not attend the hearing.

No evidence ether by way of Submission or Oral Testimony was presented by the Respondent.

This complaint concerns payment of a statutory redundancy lump sum.

The entitlement to a redundancy payment is outlined in Section 7 of the Redundancy Payments Acts which states as follows:

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.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees. ]

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive, but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(4A) In ascertaining, for the purposes of subsection (2) (c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer ‘ s family-

father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister.

(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

I accept the Complainants evidence that he was employed by the Respondent from 04 August 2020 and was laid off on 21 October 2022 with periods of layoff from 13 October 2020 to 03 May 2021.

Based on the documentation furnished at the hearing, I am also satisfied that the Complainant’s normal weekly remuneration was €432.61 gross per week.

The Complainant gave the Respondent notice in writing of his intention to claim redundancy on 11 November 2022.

On the basis of the uncontested sworn Testimony of the Complainant and the payroll details submitted, both of which were examined closely by the Adjudication Officer, I find that he was an employee of the Respondent, and that it is clear that his employment ceased in accordance with Section 7(2)(a) of the Acts with effect from 21 October 2022.

I am also satisfied that the Respondent had not paid any monies to the Complainant in respect of his redundancy at the time of the hearing on 15 August 2023.

In this regard, I find that the Complainant was made redundant on the 21 October 2022 and that he is entitled to a lump-sum payment pursuant to the Redundancy Payments Act 1967 based on his service with the Respondent from 04 August 2020, until 21 October 2022 and noting his break in his service due to COVID-19 restrictions from 13 October 2020 to 3 May 2021.

The entitlement to a redundancy payment is based on the Complainant having been in insurable employment within the meaning of the Social Welfare Acts for the relevant period.

At the hearing the Complainant cited a recent decision from the Workplace Relations Commission ADJ-00031194 in support of its position.

On review of that decision, I note that it relates to a different set of circumstances and that the Respondent listed in the decision cited is the Department of Social Protection whereas the complaint before me is taken against the Complainant’s former employer.

By way of update, the representative for the Complainant sent in documentation to the WRC on the 21 December 2023 noting that since the WRC hearing, they had received correspondence from the Department of Social Protection, Redundancy and Insolvency Unit which informed the Complainant that his application for the Redundancy Payments Scheme had been approved for payment and that he was to receive an amount of €1,868.88 in this regard.

After the WRC querying the Complainants representative on the same date if the Complainant intended to withdraw the Complaint now that he had received his entitlement to a redundancy payment, the representative for the Complainant followed up with a further email also on the same date stating that they were happy to proceed with the case and have the Adjudication Officer issue a decision.

Section 39 subsection (15) of the Redundancy Payment Act, 1967 states that any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1) (d), 38 (1) (e) or 38 (1) (f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may, on giving notice of appeal to the Minister in the prescribed manner, have the question referred to the Tribunal for a decision thereon; provided however, that the Tribunal shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts, 1952 to 1966.

Accordingly, while I find in favour of the Complainant that it appears he is entitled to redundancy, this is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

I find that the Complainant was made redundant on 21 October 2022 and that he is entitled to a lump-sum payment pursuant to the Redundancy Payments Act 1967 based on the following criteria:-

Date of Commencement of Employment:  04 August 2020

Date of Termination of Employment:  21 October 2022

Periods of Covid related lay-off: 13 October 2020 to 3 May 2021

Gross weekly wage based on recent payslips: €432.61

The entitlement to a redundancy payment is based on the Complainant having been in insurable employment within the meaning of the Social Welfare Acts for the relevant period.

Claim for statutory redundancy payment – Section 39 Redundancy Payments Act 1967