Complainant

Respondent

Parties

Frank  Nelson

Northway Personnel Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Neil Cosgrave Cosgrave Solicitors

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-00060266-001

27/11/2023

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

CA-00060266-002

27/11/2023

The Complainant commenced employment as a Truck Driver with the Respondent on 3 July 2016. In the first instance, he is seeking a redundancy payment on the basis that his position was made redundant in 2023. He is also seeking his minimum notice entitlements.

The Complainant was temporarily laid off by the Respondent on 30 June 2023 due to a downturn in work on the site in Clonee, Co. Meath on which he was engaged. Although the Respondent subsequently contacted him about the possibility of work in Greystones, Co. Wicklow on 18 July 2023, the Complainant did not receive any response when he inquired about same.

The Complainant’s solicitor thereafter wrote to the Respondent on 26 September 2023 stating that as his position was redundant, he was seeking his redundancy entitlements.   

The Respondent disputed that the Complainant was entitled to a redundancy payment. In the first instance, it was asserted that the Complainant was offered work based in Greystones on 18 July 2023 and also in Kilkenny on 28 September 2023, which he chose not to accept. The Respondent’s representative also stated that the Complainant was contacted on 6 November 2023 and was offered positions as a general operative in Greystones and Blessington but did not respond to the email.  

It was also highlighted that, as the Respondent is an employment agency, there was an expectation that the Complainant should have travelled to wherever the client site was based. It was further asserted that this requirement to work at any location was provided for in the Complainant’s contract of employment. 

CA-00060266-001:

The Redundancy Payments Acts 1967 states:

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.

13.—(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

Findings:

I note in the first instance that it was accepted by both sides that the Complainant was temporarily laid off by the Respondent on 30 June 2023.

I further noted that the Complainant’s representative subsequently wrote to the Respondent on his behalf on 26 September 2023. He stated in his submissions that this constituted notification of the Complainant’s intention to claim redundancy. This assertion was disputed by the Respondent’s representative. Having reviewed this correspondence, I note that it stated the Complainant’s “position was made redundant and we hereby demand that you confirm this within 7 days of the date hereof, failing which we shall refer the matter to the WRC” and also requested that the Respondent “outline the proposed redundancy payment”. I am therefore satisfied that this constituted a notification of the Complainant’s intention to claim redundancy.

Section 13 of the Redundancy Payments Act 1967 allows for an employer to serve a counter notice on an employee within seven days in writing, stating that they will contest any liability to pay a redundancy payment in pursuance of the notice of intention to claim.

Although the Respondent replied on 5 October 2023 to the notification of the Complainant’s intention to claim redundancy of 26 September 2023, disputing that he had been made redundant, this was outside of the seven-day timeframe set out in section 13 above.

While I also noted the Respondent’s representative’s assertion that a job offer had been made to the Complainant on 28 September via Whatsapp, which was less than seven days after the Complainant had indicated his intention to claim redundancy, there was nothing in this message to suggest that this was a counternotice or to indicate that the sender of the message even knew that the Complainant had sent his notification of intention to claim redundancy.

Considering all of the foregoing points, I allow the Complainant’s appeal.

CA-00060266-002:

The Minimum Notice and Terms of Employment Act 1973 states:

5.—(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

(2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.

As the Complainant is considered to have voluntarily resigned when he submitted his notification of intention to claim redundancy, he is not entitled to a notice payment pursuant to section 5 (2) of the Act above.

CA-00060266-001:

I allow the Complainant’s appeal for the reasons set out above and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payments Acts 1967 – 2014 based on the following criteria: 

-          Date of commencement:  3 July 2016

-          Date of termination: 26 September 2023

-          Gross weekly wage: €854

-          Period of temporary lay – off: 1 July 2023 – 26 September 2023. This period is non-reckonable for the purposes of calculating the redundancy payment.

CA-00060266-002:

I find that this complaint is not well founded for the reasons set out above.