Complainant

Respondent

Parties

Vitalie  Coval

Northway Personnel Ltd.

Representatives

Marius Marosan

 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-00058941-001

20/09/2023

The Complainant gave this evidence on Affirmation with the assistance of an interpreter who swore an Affirmation.

Philip Gannon, Director gave evidence on Affirmation. Submissions were filed in advance of the hearing.

The parties both availed of the opportunity to cross examine the witness.

Having carefully considered the evidence and the facts of this case, it simply comes down to the application of the law on redundancy and the time limit prescribed by the Redundancy Payment Acts in relation to the RP9 Form. The offer of alternative employment is not relevant to this complaint, as the Respondent signed the statutory RP9 form confirming the period of layoff. It is also noted that the last offer of employment was dated 29 June 2023, in excess of four weeks from the date of the RP9, 14 August 2023.

The Complainant submitted the RP9 Form to the Respondent on 14 August 2023 as notification of his intention to claim redundancy following the expiration of a period of four consecutive weeks of being on layoff. Section 13 of the Redundancy Payments Act 1967 allows for an employer to serve a counter notice on an employee within 7 calendar days in writing, stating that they will contest any liability to pay a redundancy payment in pursuance of the notice of intention to claim.

On 21 August 2023, the Respondent contested the redundancy by completing Part C of the RP9 Form, thereby confirming that it was reasonable to expect that within four weeks of the date of service of the RP9 form, the Complainant would enter into a period of employment for at least 13 weeks. However, the next offer of employment from the Respondent to the Complainant came on 7 November 2023, which is outside the period of four weeks provided for on the signed RP9 Form. Consequently, the Respondent did not fulfill the counter-notice, and the Complainant is entitled to redundancy.

The Complainant is considered to have voluntarily resigned, and on that basis, he is not entitled to his notice period pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

It was Respondent’s evidence that the Respondent is agency. The Complainant was laid off by letter dated, 26 May 2023. On 29 June 2023 the Complainant was offered work in Kilkenny, but this was this offered was refused.

Mr Gannon gave evidence that the Complainant signed the terms of employment following a meeting with SIPTU on 3 January 2017. Reference was made to the location clause within the contract of employment along with the day-to-day nature of the work.

Mr Gannon’s gave evidence of two comparator employees were treated in the same manner as regards the location of work. Mr Gannon explained arrangements were made to facilitate the employees travel to and from work.

Mr Gannon was asked about why the terms of employment presented were not signed? It was his evidence there was a general meeting organised with the assistance of SIPTU where all employees on the Clonee site were given a contract and asked to sign the separate sheet. Mr Gannon was asked if there the document had been translated for the Complainant or anyone appointed to translate it for him.

As regards the offer of work, Mr Gannon was asked about the location of the work and was this communicated to the Complainant. It was his evidence that the Respondent was flexible with people. It was put to Mr Gannon that he should have given the full details of the employment to which he replied most people would come back with questions if they were interested in the position. It was put to Mr Gannon this was not an offer of suitable alternative employment as it was too far from the Complainant’s home and unreasonable to expect him to get public transport to an unknown location in Kilkenny.

Mr Gannon was asked about the RP9 Form and in particular Part C. It was Mr Gannon’s evidence it was signed by another Director at the Respondent. He was asked if the Complainant was offered work within four weeks of the date of the RP9, 21 August 2023. It was put to Mr Gannon the next offer of employment came on 7 November 2023 which was after the four-week period.

Having carefully considered the evidence and the facts of this case, it simply comes down to the application of the law on redundancy and the time limit prescribed by the Redundancy Payment Acts in relation to the RP9 Form. The offer of alternative employment is not relevant to this complaint, as the Respondent signed the statutory RP9 form confirming the period of layoff. It is also noted that the last offer of employment was dated 29 June 2023, in excess of four weeks from the date of the RP9, 14 August 2023.

The Complainant submitted the RP9 Form to the Respondent on 14 August 2023 as notification of his intention to claim redundancy following the expiration of a period of four consecutive weeks of being on layoff. Section 13 of the Redundancy Payments Act 1967 allows for an employer to serve a counter notice on an employee within 7 calendar days in writing, stating that they will contest any liability to pay a redundancy payment in pursuance of the notice of intention to claim.

On 21 August 2023, the Respondent contested the redundancy by completing Part C of the RP9 Form, thereby confirming that it was reasonable to expect that within four weeks of the date of service of the RP9 form, the Complainant would enter into a period of employment for at least 13 weeks. However, the next offer of employment from the Respondent to the Complainant came on 7 November 2023, which is outside the period of four weeks provided for on the signed RP9 Form. Consequently, the Respondent did not fulfill the counter-notice, and the Complainant is entitled to redundancy.

The Complainant is considered to have voluntarily resigned, and on that basis, he is not entitled to his notice period pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

I find the Complainant is entitled to redundancy payment pursuant to the Redundancy Payment Acts 1967 – 2012 on the following basis:

Start Date: 02 January 2017

End Date and Termination Date: 14 August 2023

Hours Worked Per Week: 45 Hours

Weekly Gross Wage: €600

No Notice Period.

This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy – RP9