Complainant

Respondent

Parties

Octavian  Nacu

Northway Personnel Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

Marius Marosan

Krystian Boino Boino Solicitors

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-00058237-001

11/08/2023

The Complainant appeared with the assistance of an interpreter and both swore an Affirmation.

Mr Philip Gannon, Director, gave evidence on behalf of the Respondent on Affirmation.

Submissions from the Respondent were received with a copy of the contract sought post hearing. Additional, caselaw was submitted by the Respondent after the hearing however this has not been considered as part of this decision on the basis that clear directions for one document only, i.e. the contract of employment was to be submitted post hearing. It is not fair to the Complainant to provide further evidence or submission which cannot be tested in evidence by the Complainant. 

The Complainant gave evidence that he was employed with the Respondent a General Operative from 21 November 2016 until 21 April 2023.  It was the Complainant’s case that he did not receive any redundancy payment despite applying to the Respondent.

He worked on the same site in Clonee from the commencement of his employment until he received a letter from the Respondent advising he was being placed on temporary lay off by letter dated 11 April 2023. The Complainant explained he did get an offer of work in Kilkenny in June 2023 but refused it on the basis he did not have a car and it was too far to travel as he lived in Dublin.

With the assistance of his family, the Complainant completed a RP77 Form, dated 30 June 2023, claiming he had been dismissed by reason of redundancy but had not received his RP50 Form or a lump sum payment.

It was the Respondent’s evidence that Complainant was not entitled to redundancy was he was offered alternative work on 29 June 2023 but unreasonably refused it. It was further submitted that the Complainant did not serve any intention in writing to claim redundancy. Instead serving the RP77 Form on 30 June 2023 which applies only once an intention or RP9 Form has been served on the employer and an opportunity to serve a counter notice is given.

An email of 17 August 2023 was referred to by Mr Gannon wherein the Complainant was offered work in Dublin but refused it on the basis he was on holidays. It was Mr Gannon’s evidence that the Complainant did not state that he was dismissed in this email or contact him upon his return as he was requested to do so.

Section 12 of the Redundancy Payments Act 1967 provides:-

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 12 provides for a three-step process that require the employee to follow in order to claim redundancy. The Complainant did get notification of lay off on 11 April 2023 and worked until 9 May 2023 on the Clonee site. An offer of employment was sent via email 29 June 2023 with minimal detail. It is the responsibility of the Respondent to provide as much detail as possible for the Complainant about the offer of work to allow for an informed decision. This was not the case in the vague email of 29 June 2023.

However, the Complainant failed at the second step, Section 12 (1) (b) by sending an RP77 Form the following day, 30 June 2023. The RP77 Form comes with a clear explainer as to when to use the form. The Complainant, who accepted he was not dismissed, ought to have sent a RP9 Form or alternatively, a letter noting his intention in writing of his intention to claim redundancy. It should be noted that the RP forms are not statutory forms. Regardless, the Complainant failed to properly notify the Respondent of his intention, the Respondent was not giving a fair opportunity to issue a counternotice.

The offer of employment on 17 August 2023, albeit after the RP77 was sent, was responded to by the Complainant with no indication whatsoever that he considered himself dismissed by reason of redundancy.

On that basis where the Complainant did not satisfy Section 12 of the Redundancy Act 1967, I cannot allow the appeal.

For the reasons outlined about I find the appeal is not allowed.

Redundancy – Not Allowed